Zimbabwe's new law will mean nothing without implementation, writes Gwinyayi Dzinesa.
The much-anticipated referendum on Zimbabwe's new Constitution to replace the much-amended post-war Lancaster House Constitution of December 1979 has come and gone, leaving many observers wondering whether it will lay the foundation for a new democratic dispensation in Zimbabwe.
The supreme law of the land should claim priority over any state legislation, discipline future elected governments and safeguard democracy. More than 3.3-million, well over half of an estimated 5.6-million registered voters, participated in the plebiscite and a landslide 94.5% of the votes accepted the new Constitution.
This outcome was expected despite widespread perceptions that the referendum was a mere formality, given that the three coalition government parties, Zanu-PF and the two MDC formations, approved the proposed Constitution in February and had implemented a blitz campaign for a "Yes" vote. The voting was largely peaceful and orderly. Four critical aspects and lessons stand out.
Huge step forward
First, the referendum was a huge step towards the adoption of a new democratic Constitution, which is a key requirement of the Global Political Agreement (GPA) signed in September 2008 by the three political parties represented in Parliament: Zanu-PF led by Robert Mugabe and the two formations of the Movement for Democratic Change, the MDC-T led by Morgan Tsvangirai and the smaller MDC-N led by Welshman Ncube.
The agreement, brokered by the Southern African Development Community (SADC), ended the 2008 election dispute between Tsvangirai and Mugabe and led to the formation of the transitional government of national unity that assumed office in February 2009.
Given Zimbabwe's well-documented history of election-related violence, the adoption of a new democratic Constitution, after consultation with the people, is central to the agreement's goal of creating an environment conducive to peaceful and credible elections, probably in July this year.
Second, although a new Constitution is a significant precondition for free and fair elections, it is important to recognise that constitution-drafting is part of a broader democratic reform process and that, no matter how plausible the new national charter may be, it is not self-implementing. Notably, the agreement parties' fixation on constitutional reform and polls has resulted in the relegation of essential parallel processes such as voter education to the back burner. Deeply entrenched political interests, lack of political cohesion, biased institutional structures and elite groups keen to maintain the status quo are some of the challenges that will face the implementation of Zimbabwe's new Constitution.
An uphill task
Implementing the new Constitution and the election roadmap that still needs to be drawn up by the three governing parties and endorsed by SADC will be an uphill task, requiring political goodwill and commitment.
Given the tortuous road to the new Constitution, the development and implementation of a clear roadmap may be protracted, making the July 2013 election mooted by officials too optimistic. It is possible that the parties could still haggle over critical fundamentals such as the harmonisation of old laws such as the Public Order and Security Act with the new Constitution, the creation and operationalisation of effective and professional institutions to run the polls and the implementation of mechanisms to prevent or handle political violence and intimidation.
For instance, the MDC-T has been calling for an overhaul of the Zimbabwe Electoral Commission secretariat, whose staff allegedly include ex-army officers sympathetic to Zanu-PF who managed the disputed 2008 polls.
Zanu-PF political appointees dominate the observer accreditation committee, which compromises the commission's independence. The electoral roll, first drawn up in 1985, is still in a shambles.
Although there have been positive steps in the media-reform arena such as the licencing of new print-media players and two more local radio stations, the country's repressive media laws, such as the Access to Information and Protection of Privacy Act and the Censorship and Entertainment Control Act, remain intact. Accurate, comprehensive, impartial, fair and responsible coverage of the upcoming election is crucial in a situation in which systematic public-media bias and deceptive political communication during election campaigns have served to promote Zanu-PF.
Meanwhile, the security sector, which has a record of partisan involvement in violent political processes in order to influence the outcome of elections, has been shielded from reform by Zanu-PF, despite constant pleas from the MDC-T. Professional and politically neutral law-enforcement agencies are required to secure the polls.
Third, the cash-strapped Zimbabwe government should ensure the timeous availability of resources for the commission to prepare and run the forthcoming harmonised election.
The commission coped relatively well with the logistical challenges of conducting the referendum less than a month after the starting gun was fired. However, the harmonised elections will be considerably more complex than a referendum that invariably had two choices – yes or no – and in which the entire country had a single ballot.
Fourth, as guarantors of the agreement, SADC and the African Union have a responsibility to support Zimbabweans by deploying heavyweight teams of long-term monitors and not "tourist teams" to ensure peaceful and credible elections. By sending a short-term team of only 78 observers to observe the constitutional referendum, SADC may have missed an opportunity to do a dry run of its capacity to assess the political situation, to prevent violence and intimidation, and to ensure that the subsequent electoral process and outcome are credible.
Clean bill of health
Despite reports of sporadic violence and acts of intimidation and harassment, physical violence and arrests against civil society actors, the SADC observer mission gave the referendum a clean bill of health.
Zimbabwe's watershed election is expected to terminate the life of the shaky coalition government that both Mugabe and Tsvangirai have conceded to be dysfunctional.
Although a largely tolerant and peaceful civic atmosphere characterised the pre-referendum phase, there is a danger that Zimbabwe's political temperature could rise as the election battle lines are drawn.
The violence accompanying the 2008 presidential run-off, the last time the country went to the polls, and recent reports of a police crackdown on rights activists, the arrest of a prominent human rights lawyer and four senior MDC-T officials, even with the SADC observer team on the ground, have jangled nerves.
There are signs that the atmosphere is changing from the conciliation that characterised the agreement principals and the party unanimity over the draft Constitution, even before the announcement of the referendum results and proclamation of the election date. Tsvangirai has called on SADC to convene a special summit on Zimbabwe to ensure peaceful and credible elections.
Robust and consistent communiqués have emerged from SADC summits since the Troika Summit of the SADC Organ on Politics, Defence and Security Co-operation met in Livingstone, Zambia, in March 2011, urging the parties to the agreement to develop and implement a roadmap with timelines to free and fair elections. It remains to be seen whether SADC will consider giving its electoral advisory council a more comprehensive mandate to ensure that Zimbabwe's elections are held in conformity with regional standards for democratic processes.
Dr Gwinyayi A Dzinesa is a senior researcher at the Institute for Security Studies in Pretoria, South Africa