Zimbabwe's Presidency and the balance of power in Parliament

Zimbabwe's Presidency and the balance of power in Parliament

• Mugabe's crisis of legitimacy

• Judging Justice Uchena's judgment

• Did they have to die for this?

• Challenging ministers' constititutional authority

• Waiting for Godot

• Mugabe: beware the Ides of March

• The Godfather and the Zanu PF Mafia Part III

• Fallacy of the secret ballot in Zimbabwe

• The significance of Dabengwa's conversion

• Preventing a tyranny of the majority

• Who is imposing whom and why?

• The Tsvangirai-Makoni question: the results

• Can Tsvangirai make the ultimate sacrifice?

• Makoni'sbattle against conspiracy culture

• Makoni and the politics of stability

• The trouble with gifts for the judiciary

• The limits of megaphone central banking

• Makoni, Tsvangirai & Mutambara: wise men from the East?

• Democracy without wealth: the Gordian knot in African politics

• Democracy: Africa's elusive dream?

• A non-human rights perspective of Zimbabwe's collapse

• Zanu PF succession: Mujuru and Mnangagwa in tactical retreat

• Zimbabwe: when the elephants fight, it's the grass that suffers

• Big Joes, Little Joes: Zimbabwe's merchants of disorder

• Politics is for the well fed, an old timer told me in Mbare

• The Godfather and the African Mafia Part II

• The Godfather of the Zanu PF Mafia

• The President's missing clothes

• Confronting Zanu PF's anti-imperialist rhetoric

• South Africa's self-serving quiet diplomacy

• When will Africa demonstrate solidarity with Zimbabweans?

• Do they sleep soundly at night?

• Indepedence: was it worth the sacrifice?

• Judges under pressure: the Madzimbamuto case

• Succession debate a means of control for Mugabe

• Reflections on Ghana's Jubilee

• What happens when politicians fail?

• Fanon and the car as a symbol of progress

• Could change in Britain have impact on Zimbabwe?

• Machiavelli and perils of change in Zimbabwe

• Of rats, donkeys and the CNN story

By Alex T. Magaisa

THE prospect of a run-off election in Zimbabwe has caused a flurry of questions about its technicalities and implications on the immediate future of the country.

This is understandable considering that this is the first time that Zimbabwe is going through this type of second round contest. There is a particular point of concern, however, that appears to have been insufficiently considered. It is the matter of the balance of power in Parliament and its probable impact on the country’s immediate future.

It can be summed up in one question: To what extent can it be said as a matter of finality, that the MDC has full control of Parliament? In other words, has the issue of control of Parliament been settled by the Parliamentary elections so that it can be said with certainty that the MDC will be in effective control of Parliament?

The answer to this question may seem obvious given what has been widely reported in the media. But a deeper look reveals that it is not so straightforward, particularly when one considers the legal institution of Parliament as a whole. There is, in fact, the lurking risk that the elected majority can be reversed depending on the outcome of the Presidential election.

Nature of Parliament

Section 33 of the Constitution provides that institution of Parliament consists of two Houses, that is, the Senate and the House of Assembly. It appears however, that when media reference is made to ‘Parliament’ this has been narrowed to mean the ‘House of Assembly’. This overlooks the Senate, which legally, is also part of the overall institution of Parliament. What is often referred to as Parliament should really be simply called the House of Assembly’.

The combined MDCs do hold the majority in the House of Assembly all of which seats are won through an election. If Professor Jonathan Moyo’s seat is added to that bloc, the erstwhile opposition now has 111 seats compared to Zanu PF’s 97 seats, making Zanu PF the new opposition in the House of Assembly.

In the Senate, the combined MDCs hold 30 seats which is an equal number to Zanu PF’s 30 seats. So in effect, of the 270 elected seats in Parliament (House of Assembly and Senate), the combined MDC holds a majority over Zanu PF. In that regard, it holds claim to the moral capital of representing the will of the people.

It would be great if it was that simple, but, unfortunately, that is an incomplete picture. The finality of who controls Parliament as a whole is ultimately dependent on the result of the Presidential election and here is why.

The ‘33 Factor’

It is because of what, for convenience, we will call the ‘33 Factor’. The warped laws effectively give the person elected as President the power to appoint up to 33 Senators. Although the direct power of appointment relates to only 5 Senators, the reality is that there is effectively an extra 28 appointees. How this is achieved is quite simple:

In addition to the 60 elected Senators, the President has the power to appoint 5 Senators. These five are, naturally, the President’s men and women.

Furthermore, the 10 Provincial Governors have seats in the Senate. Provincial Governors are appointed by the President. They are also the President’s men and women.

The final 18 Senate seats are occupied by Chiefs. They comprise of the President and Deputy President of the Council of Chiefs and two chiefs from each of the provinces, excluding the metropolitan provinces of Harare and Bulawayo, which have no chiefs. Although the chiefs are elected by their fellow chiefs to represent their special constituency in the Senate, it is worth noting that overall, the laws for the appointment of Chiefs entail that they are effectively appointed by the President. It is, therefore, more than likely, that these 18 are also the President’s men. Such has been Zanu PF’s manipulation of the office of the Chief.

It is clear therefore that the balance of power in Parliament as a whole depends on who is elected as President. If Mugabe wins, it raises the spectre of Zanu PF overturning MDC’s elected majority in Parliament. That would mean having the wishes of millions of Zimbabweans being practically overturned by one person.

Possibilities

If Tsvangirai wins, it would potentially boost the MDC’s majority, assuming of course, that he will pocket the Chiefs as Mugabe has been able to do for years. But it is worth recalling that the 18 Chiefs have already been elected and they were appointed by Mugabe. It is likely that their loyalty is with Mugabe, already giving Zanu PF an 18-point majority in the Senate.

If Mugabe were to somehow perform an unlikely Houdini act and claim the Presidency in the run-off, the use of the ‘33 Factor’ in the Senate would assume greater importance even when the MDC controls the House of Assembly where laws traditionally originate. Section 51 of the Constitution, which regulates the mode of exercising legislative powers makes clear that Parliamentary power to make laws shall be exercised by both the House of Assembly and the Senate.

Of course, Mugabe would find it hard to govern when the House of Assembly, where laws originate, is controlled by the MDC.

However, there is another more immediate reason why the ‘33 Factor’ matters greatly at this delicate time. It is because it offers a great opportunity for Zanu PF to roll out its succession plan and perhaps find a way for Mugabe to extricate himself from the mess on his terms.

Electoral College and Election of President

Section 28(3)(b) of the Constitution states that in the event of a vacancy in the Office of the President, members of the Senate and the House of Assembly shall sit as an Electoral College to elect a new President. Prior to this provision introduced via the controversial Constitutional Amendment (No. 18) of 2007, such a vacancy would have required a national election to be held within 90 days.

The new provision is important because the political party that has a majority of Parliamentarians who constitute the Electoral College will determine the next President. This is where the combined Parliament becomes acutely relevant.

Assuming that Tsvangirai boycotts the run-off and Mugabe is declared duly appointed without contest or in the unlikely event that Mugabe somehow scraps through at the run-off, that would give him the chance to affect the balance of power through the ‘33 Factor’. He could then, by way of a staged concession to mounting pressure and acknowledgement of his own inability to reverse the country’s decline, strategically ‘resign’, thus creating a vacancy in the Office of the President.

It would then fall upon Parliament to make the crucial decision of electing the President on behalf of Zimbabweans. This would provide a gateway for the emergence of a Zanu PF candidate – the anointed heir.

It is likely that, to douse the flames of protest both internally and externally, this new person would extend an olive branch and try to be pacifist. The international community, but especially the African community, which is surely getting tired of Zimbabwe, will be looking for an easy way out. This might be it and the MDC might find itself forced by circumstances to concede to the status quo.

Conclusion

That spectre is why it is in its own interests for the MDC to contest the run-off and retain political and moral leverage. If it wins, it stands to gain some of the ‘33 Factor’ and therefore consolidate its elected majority.

But even if it loses, a Mugabe victory is likely to sound hollow. But Tsvangirai’s confirmation of public support will stand him in good stead should it come to the matter of negotiations, if any are required. It is increasingly looking likely that the conflict in Zimbabwe will need more than the ballot to resolve.

At the moment it is a game of what Zimbabweans refer to as makasa or poker. In this regard, one is reminded of Kenny Rogers’ old number, The Gambler. He says, in part, “You've got to know when to hold them; Know when to fold them; Know when to walk away; Know when to run; You never count your money; When you're sitting at the table; There'll be time enough for counting; When the dealing’s done”.

Alex Magaisa is based at Kent Law School, UK and can be contacted at wamagaisa@yahoo.co.uk
JOIN THE DEBATE ON THIS ARTICLE ON THE NEWZIMBABWE.COM FORUMS
debate@newzimbabwe.com