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Needed: undisputed legality and political legitimacy.

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 on a day longer than the day of the announcement of the election results this year, says Prof. Welshman Ncube, leader of the smaller MDC-N party. (This is an abridged version of what he told the Sadc summit in Maputo.)

ALLOW ME TO PLACE ON RECORD THAT my party is in full agreement with all the recommendations that have been made by President Jacob Zuma on the way forward. I also appreciate and agree with the recommendations of Prime Minister Morgan Tsvangirai. 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.

President Mugabe's unilateral proclamation [of the election date], rightly described by the prime minister as an unexpected ambush of fellow GPA partners, has paid undue emphasis to technical compliance with the Constitutional Court judgement at the expense of both political legitimacy and compliance with the new Constitution and other electoral laws.

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 judgement. The attempt at unilateral compliance with the Supreme Court judgement has also led to a near-complete break-down of all forms of co-operation within the Inclusive P Government, resulting in extreme acrimony among the N GPA partners.

The current events in Zimbabwe, as correctly described in the [Sadc] Facilitator's Report, are a sad end to the four years of working together in the Inclusive Government. We cannot allow our four years of cooperation to end so badly and so acrimoniously just because we have challenges in the final mile to elections.

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 is 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 judgement and the unilateral proclamation [of the election date] without regard to the need for the 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.

Allow me to briefly demonstrate the legal minefield we find ourselves in as a result of the Constitutional Court judgement and the subsequent unilateral election proclamation together with the legal breaches and difficulties attendant thereto.

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, affected 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, about 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 judgement 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 judgement that 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 judgement 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. It could not have been the intention of the Constitutional Court to invite a series of decrees in order to enforce its judgement designed to prevent rule by decree. 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 [rush] to amend one of the sections of the Electoral Act.

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.

[We should also] 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. For over a decade, the police 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.

The Criminal Code [should also] 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.

The security sector, particularly the military, should [also] 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. 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.

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.

We need to recapture the spirit of co-operation and consensus.
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Title Annotation:OPINION MDC-N
Author:Ncube, Welshman
Publication:New African
Geographic Code:6ZIMB
Date:Jul 1, 2013
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