What was supposed to be the coming-out party for the new Zimbabwean Constitution risks becoming just another illegitimate election. Holding the election on July 31st, though in keeping with the Constitutional Court’s ruling, is against both the letter and the spirit of Zimbabwe’s new Constitution. The widely-criticized Constitutional Court judgment mandated a deadline that ensures that qualitative provisions cannot be complied with, and President Mugabe happily – and unilaterally – declared that the elections would be held on 31 July.
A special Zimbabwe themed meeting of Southern Africa Development Community (SADC) heads of state will take place on 15 June and it is hoped SADC will decide not to provide technical, financial, logistical and/or moral support for the holding of Zimbabwe’s elections on 31 July 2013. Although it seems little can be done to change Mugabe’s mind.
By setting a date for the elections the Constitutional Court has greatly diminished Zimbabwe’s ability to hold free, fair and credible elections. Further, President Robert Mugabe’s unilateral proclamation of 31 July 2013 for Zimbabwe’s election date constitutes a gross abuse of power. His actions are inconsistent with the Global Political Agreement (GPA), article 11 of which requires that all parties to the GPA are to “respect and uphold the Constitution and other laws of the land” and “adhere to the principles of the Rule of Law.” President Mugabe’s conduct also offends Zimbabwe’s new Constitution, Schedule Six of which requires that Zimbabwe’s “first elections” be conducted under the new Constitution.
Having played a crucial role in the brokering of the GPA and through its oversight of Zimbabwe’s constitutional process, SADC must ensure that Zimbabwe does not jeopardise the democratic quality of its first elections and the integrity of Zimbabwe’s new Constitution.
SADC must appreciate that, contrary to the findings of the Constitutional Court, it is Zimbabwe’s new Constitution that explicitly provides for the holding of Zimbabwe’s elections. Elections must therefore be carried out in terms of the transitional provisions of the new Constitution which are contained in the Sixth Schedule. The Sixth Schedule neither stipulates a date on which elections must be held, nor requires that a date for elections is to be determined in terms of Zimbabwe’s outgoing Constitution. Rather, the only condition imposed in terms of the Sixth Schedule is that “first elections” must be carried out in terms of an “Electoral Law in conformity” with the new Constitution. It is Zimbabwe’s readiness that must guide the decision as to when elections should be held. The Sixth Schedule is concerned not about the timing of the elections but about constitutional compliance, which, once met, will allow an election date to be set.
For Zimbabwe to hold constitutionally compliant elections, the Electoral Act as well as other laws and regulations related to the elections must be amended so that they are in compliance with new Constitution. Additionally, voter registration needs to be completed. These are legal and constitutional requirements that are subject to time and content-specific procedures, which make 31 July 2013, constitutionally and practically impossible. In terms of section 11(1) of the Sixth Schedule, any decision of the President must be in accordance with the new Constitution. President Mugabe’s government has attempted to fast-track these processes and in doing so has acted unconstitutionally, and is now the subject of a constitutional challenge.
SADC itself recognises in its Principles and Guidelines Governing Democratic Elections that SADC member states must create an electoral environment conducive to (i) Full participation of all citizens in the political process; (ii) Freedom of association; (iii) Political tolerance; (iv) Equal opportunity for all political parties to access the state media; and (v) Equal opportunity to exercise the right to vote and be voted for. Zimbabwe’s new Constitution provides the legal parameters in which these prerequisites are met, but only if strictly adhered to by the Zimbabwean Government.
SADC must therefore condition its support for Zimbabwe’s elections on Zimbabwe’s full compliance with the GPA and the implementation of constitutionally mandated reforms to Zimbabwe’s electoral law and that the processes therein be conducted in accordance with Zimbabwe’s new Constitution. The Constitutional imperative of “free and fair” elections must guide SADC’s deliberations and recommendations in this regard.
Credible elections are at the heart of any constitutional democracy’s legitimacy. Elections are an essential component of the rule of law, if not its foundation. If SADC fails to intervene and permits Zimbabwe to hold elections that are inconsistent with Zimbabwe’s Constitution, that failure will render SADC complicit in an unconstitutional state of affairs that SADC has thus far sought to avoid.
SADC has a duty to the Zimbabwean people to ensure that Zimbabwe’s first elections are carried out in accordance with the constitutional guarantees contained in the new Constitution and GPA, as well as SADC’s own Principles and Guidelines. This is unlikely if elections are held on 31 July. SADC risks bringing its own credibility into question if it endorses a process that is legally, practically, logistically and constitutionally flawed, jeopardising the progress made since the conclusion of the GPA and the regional bloc’s commitment to democracy.