TODAY we publish MDC leader Welshman Ncube’s presentation to the Southern Africa Development Community (Sadc) Extraordinary Summit on the Zimbabwe crisis.
Ncube teamed up with Prime Minister Morgan Tsvangirai and other political parties outside the Global Political Agreement (GPA), which gave birth to the inclusive government, to block President Robert Mugabe from railroading the country into an election.
Following their presentations and that by Sadc facilitator South Africa President Jacob Zuma, the regional leaders forced Mugabe to postpone harmonised elections at the dramatic summit in Maputo last Saturday. This followed Mugabe’s unilateral proclamation of the election date as July 31.
Below is Ncube’s presentation.
Mr Chairman, I do not take this opportunity to address the Summit lightly. I appreciate the opportunity and thank you for it. Mr Chairman, allow me to place on record that my party is in full agreement with all the recommendations that have been made by President Zuma on the way forward. I also appreciate and agree with the recommendations of the Right Honourable Prime Minister. Permit me, Mr Chairman, in further amplification of the Facilitator’s Report and recommendations to highlight the political and legal conundrum which has been created by the Constitutional Court judgment on the issue of the date of the elections and the subsequent unilateral publication of the election proclamation supposedly in fulfilment of that Constitutional Court judgment.
Mr Chairman, we need to find a way out of the political and legal conundrum so that we can return to undisputed legality in the processes leading to the election.
His Excellency President Mugabe’s unilateral proclamation, rightly described by the Honourable Prime Minister as an unexpected ambush of fellow GPA partners, has paid undue emphasis to technical compliance with the Constitutional Court judgment at the expense of both political legitimacy and compliance with the new Constitution and other electoral laws. Mr Chairman, it cannot be right to act in brazen violation of a plethora of provisions of the Constitution and other laws supposedly so that we are to be seen as in technical compliance with the Constitutional Court judgment. The attempt at unilateral compliance with the Supreme Court judgment has also led to a near-complete breakdown of all forms of co-operation within the inclusive government resulting in extreme acrimony among the GPA partners.
Mr Chairman, the current events in Zimbabwe, as correctly described in the Facilitator’s Report, are a sad end to the four years of working together in the inclusive government.
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We cannot allow our four years of co-operation to end so badly and so acrimoniously just because we have challenges in the final mile to elections. Mr Chairman, we need to ensure that this year’s elections are credible and that they are accepted by us Zimbabweans as free and fair and as legitimate.
We need to ensure that the outcome thereof are accepted by Sadc and the rest of the international community as legitimate and as expressing the general will of the people of Zimbabwe.
The Constitutional Court judgment and the unilateral proclamation without regard to the need for co-operation and agreement of other GPA partners have made this impossible.
Thus, we need to find a way back to co-operation, undisputed legality and political legitimacy.
Mr Chairman, allow me to briefly demonstrate the legal minefield we find ourselves in as a result of the Constitutional Court judgment and the subsequent unilateral election proclamation together with the legal breaches and difficulties attendant thereto.
The new Constitution of the country recently adopted overwhelmingly by over 3 million voters enjoins us to ensure that we conduct a special and intensive voter registration exercise for a minimum of 30 days before voting takes place in this year’s election. That registration exercise started on June 10 2013 and is scheduled to end on July 9 2013. The election proclamation has set June 28 2013 as the day on which the Nomination Court will sit to receive the nomination of candidates to stand at the elections.
This means that those persons who will register from June 28 2013 to July 9, while they will be able to vote, any of them who might desire to contest in the elections will not be able to do so.
This will be a violation of their constitutional rights in that the new Bill of Rights in the Constitution grants every citizen who wishes to do so the right to stand for election for public office.
There are yet more legal difficulties. The new Constitution provides that an Act of Parliament, that is, a law passed by Parliament and assented to by the President, must make provision for the conduct of all elections provided for by the new Constitution.
A substantial part of the ‘law’ under which it is proposed to conduct the 2013 elections is not contained in any Act of Parliament and has not been passed by Parliament, but has been brought into ‘effect’ by way of Regulations made under the Presidential Powers (Temporary Measurers) Act.
We believe that the legality of these amendments to the Electoral Act effected by Regulations is in serious doubt. Surely, it must be a violation of the Constitution to enact Regulations to govern the conduct of elections when the Constitution says that the elections must be conducted under an Act of Parliament as opposed to Presidential Regulations.
The validity of the Regulations is also in doubt due to the fact that the Presidential Powers (Temporary Measures) Act itself prohibits the making of Regulations under it, of any matter that the Constitution requires to be regulated by an Act of Parliament.
Furthermore, that Act says Regulations under it can only be made in circumstances where it is ‘inexpedient’ to have the proposed law made by Parliament.
In this case, Parliament was in session and was ready to pass the proposed law. In fact, it came as a complete surprise to some of us that the amendments which we had agreed to at Cabinet on the Tuesday were then ‘incited’ by way of Presidential Powers when in fact it was the understanding of all the parties that the amendments were to be taken to Parliament immediately. This breach of trust and faith was totally uncalled for. More importantly, the foundation of the Constitutional Court judgment which ordered that elections be held no later than 31 July 2013 was the acceptance by the Constitutional Court of the principle that rule by decree in the absence of Parliament was abhorrent and should be avoided at all costs.
The supreme irony of all this is that in attempting to comply with a judgment which rejects rule by decree, the President was advised to issue a Presidential decree during a period while Parliament was sitting and ready to pass the required law. I have no doubt that the Constitutional Court judges would be appalled that rule by decree has been resorted to in order to implement or enforce a judgment founded on a rejection of the creation of conditions/circumstances which might allow rule by decree.
A further matter which adds more confusion to the legal muddle created is that the election proclamation was issued as Statutory Instrument (SI) No 68 of 2013. The new Constitution says that once an election proclamation has been issued, no further electoral laws and or regulations can be made which have an effect on that election
Yet after the election proclamation the President made three statutory instruments intended to govern the 2013 elections. There is SI 87 of 2013; SI 88 of 2013 and SI 89 of 2013.
These deal with various matters ranging from the nomination of candidates and nomination forms through procedures and rules governing the registration or accreditation of election observers to the methods and processes for the collation of election results. All these regulations are potentially invalid for the purposes of the 2013 elections.
Mr Chairman and Your Excellencies, allow me to once again point out that it could not have been the intention of the Constitutional Court to invite a series of decrees in order to enforce its judgment designed to prevent rule by decree. Permit me to also state that the haste with which some of these decrees were made is not only self-evident, but is borne out by some very serious mistakes in the haste to amend one of the sections of the Electoral Act.
The Presidential decree in the form of SI No 85 of 2013, removed a provision of the Act which prohibited double voting in this year’s election. I believe that we need a moment of serious reflection as Zimbabweans and stand back so that we can agree on how to restore undoubted legality and political legitimacy.
In these circumstances, I propose the following: l that we agree to immediately take the Electoral Law Amendment Bill adopted by Cabinet last Tuesday to Parliament so that it can be enacted before the end of next week.
l that the President revokes the election proclamation as soon as the said amendments have been passed by Parliament.
l that the Government as a collective should approach the Constitutional Court to seek an extension of time from 31 July 2013 to, say, 14 August 2013. I assure the President that we have no intention of delaying the election unnecessarily. This short delay will enable us to restore undoubted legality and also allow us to complete the voter registration exercise before the date of nomination of candidates. It will also enable us to prepare for the election by being able to produce and avail nomination forms immediately upon the making of a new election proclamation and also to have adequate time to prepare the voters’ rolls after the closure of voter registration.
l immediately amend the Public Order and Security Act (Posa)so as to remove or suspend for the duration of the election campaign period the need to notify the Police of Political meetings so essential for free campaigning. The Public Order and Security Act has been grossly abused by the Police to make free political activity extremely difficult. For over a decade they have refused to accept that all that is required by Posa is the notification that a meeting will be held.They wrongly insist that Posa requires that application to authorise a meeting be made to them. This insistence, coupled with consistent and numerous refusals to sanction campaign meetings, means that the environment to hold credible elections will be severely undermined by the existence of this Police power
l Section 121 of the Criminal Code which allows a person to be held in custody after being granted bail on the mere say-so of prosecuting authorities must be immediately repealed. It has been abused in the past and no doubt it will be abused during the election period.
l that the Criminal Code be immediately amended to remove the clause which criminalises what is described as “insulting the President”. This clause has been abused to criminalise ordinary politicking against the President. The President at election time, is a leader of a political party and contests an election as such. Politics is a robust debate and characterisation of political contestants. To use the law to unnecessarily protect one contestant from robust scrutiny is not consistent with the principles of fair elections. For instance, one could be arrested under this law for saying that President Mugabe is old.
l that the Security Sector, particularly the military, should be requested to publicly and openly accept that it is the people of Zimbabwe who are sovereign and whose verdict at election time is final. Mr Chairman, we believe that there is no point in having an election unless the Commanders of the security services are made to declare that they would accept the verdict of the people at the election. The repeated pronouncements by the military to the effect that there are certain individuals who they will not allow to win an election severely undermines the very essence of elections. It is meant to intimidate and demobilise voters from voting for candidates of their choice by threatening them that there is no point in voting for candidates not approved by the military.
Mr Chairman, allow me to conclude by saying that it is important to recognise that when the President of Zimbabwe exercises his authority to proclaim an election, he does so as Head of State, as the President of all Zimbabweans, and not as First Secretary and President of Zanu PF.
This dispute among ourselves would be a lot easier to resolve if President Mugabe were to see himself first as our President, as President of all Zimbabweans and second as President of Zanu PF.
I thus implore President Mugabe to be the President of Zimbabwe and put above all else the national interest of all Zimbabweans when he exercises his state powers. Finally, some of us are always embarrassed when we troop to Sadc meeting after Sadc meeting.
The Zimbabwean crisis has gone on for too long. It must not be allowed to go a day longer than the day of the announcement of the election results this year.
Your Excellencies, over the last four years you have been repeatedly telling us that you do not desire that Zimbabwe be on your agenda after the next elections.
For this to happen, we must ensure that we deliver a credible election. We cannot do that under the current climate of contestation, unilateralism, acrimony and ambushing of each other.
We need to recapture the spirit of co-operation and consensus.
We ask your Excellencies to help us in this regard. We need to return to uncontested legality.
We need an election that will deliver a legitimate outcome.
We ask President Mugabe to consider political legitimacy to be as important as legal legitimacy and as important as complying with court orders
Mr Chairman and Your Excellencies, I thank you for your consideration and for hearing me patiently. I thank you, Mr Chairman
