Zimbabwe's winter of discontent

Zimbabwe's winter of discontent

• Zim's presidency and balance of power

• 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

THOSE of us who have spent time in the countryside may have come across a phenomenon referred to as Ignis Fatuus. This is a light that one can see from a distance hovering over the ground, like a flickering candle, especially during twilight or at night.

Most people would run away upon sight of this light in the belief that it is a ghost. There is a lot of folklore attached to this phenomenon in different parts of the world. But the men and women of science have their own explanations.

Today, it is commonly used in reference to something or an idea that is misleading. It appears to be but is not. Zanu PF has perfected the art of creating Ignis Fatui, often using the law -- appearing to give some light, when in fact none exists.

Manipulating the Law

Zanu PF has always tried hard to make the best for itself of the legal morass that it has created over the years. But even they have exceeded their normal standards in the aftermath of the March 29 election.

First, it was the attempt to delay the announcement of the results by demanding a recount of the parliamentary results and Presidential results that had not at the time been announced. Some of the demands were ridiculous, to say the least. They showed an organisation struggling to cope with defeat. The emptiness of the demands was exposed when the recounts changed nothing substantive.

Having been exposed at the recount, Zanu PF has now pursued the matter through the channel provided for under the law – petitioning the Electoral Court, which is something they should have done at the time they misguidedly asked for a recount. This will buy more time given that it can take up to a year to conclude the judicial process.

That recount was used to explain the delays in the announcement of the Presidential Election. Even before the result was known to the voters, Zanu PF was raising all manner of complaints, alleging rigging by the MDC and ZEC officials, some of whom were arrested. That embarrassing delay cast a huge and ugly shadow on the credibility of the eventual result, announced on May 2, more than a month after the election. But they still purported to be acting in accordance with the law.

Extending the Run-Off Deadline

Then there was the interpretation given to the period within which the Presidential run-off election should be held. The law requires that it should be held 21 days after the inconclusive election. The ZEC interpreted ‘election’ generously to mean not only the polling day but also the announcement of the result. On that basis, the 21 days did not commence to run until May 2, when the overdue results were announced. And so everyone thought the run-off would be held at least by May 23.

However, nine days before that date, the ZEC announced through a statutory instrument on May 14 that the run-off would be delayed by changing the period from 21 days to 90 days. In a related announcement, ‘Justice Minister’ Patrick Chinamasa is reported as saying that this would allow the ZEC to mobilise financial resources and introduce electoral reforms. So Zimbabweans will have to brace themselves for more changes to the electoral rules, couched by Zanu PF as ‘reforms’.

The statutory instrument has been issued in accordance with powers granted to the ZEC under Section 192(4) and (5) of the Electoral Act. Here again, the provisions have been generously construed to suggest that the ZEC has broad powers to change the periods stated in the law. That may be so, but surely, there has to be a measure of reasonableness in the way that the ZEC exercises those powers?

In the original provision under Section 110 (3), Parliament stated categorically that in the event that there is no outright majority winner, a ‘second election SHALL be held within twenty-one days after the previous election …” The word ‘shall’ is emphasised here to show that it imports a mandatory meaning into the reading of the provision’s requirements. Surely, Parliament used mandatory language in that provision for a good reason, in particular, given the paramount importance of the Office of the President and the need to bring finality to an election for that office.

For the ZEC to suggest that Parliament was ‘too ambitious’ in requiring 21 days is to demean the institution of Parliament which has the mandate to make laws. Parliament in its wisdom chose to require 21 days in recognition of the critical importance of deciding the leadership question with a sense of urgency. That Parliament allowed the ZEC to make necessary or desirable changes in terms of S. 192 requires that such powers should be used reasonably and cannot, surely, mean that ZEC can wilfully subvert its intention by unduly extending the deadline for lengthy periods.

Possibility of Further Extension

The trouble here is that using the ZEC’s interpretation, there is nothing to stop it within the next 90 days, from further extending the period again by statutory instrument, on the reasoning that it would be ‘necessary or desirable to ensure that [the] election is properly and efficiently conducted’. The implication of this is that Mugabe will retain the legal mandate to rule Zimbabwe because constitutionally he remains in office until the next president is elected. Thus there is a possibility of having a ‘Waiting for Godot’ situation, in which the election itself might never be held.

Legality of the Statutory Instrument

Another problem is that the legality of this latest move by the ZEC and the ‘Minister’ is doubtful on the basis of the questionable status of Patrick Chinamasa. Section 192(6) of the law requires that the statutory instrument be approved by the ‘Minister’ before it has any legal effect. By issuing the statutory instrument, Chinamasa purports to have approved it as the responsible Minister.

But Chinamasa is one of the ministers whose tenure must have ended when the Cabinet was dissolved prior to the March 29. He is one of the men and women whose ministerial status was suddenly and miraculously resurrected over a week after those elections, upon realisation that there was, in effect, no government besides Mr Mugabe. The Acting Attorney General attempted to justify this resurrection on the grounds that President Mugabe’s ‘dissolution’ of the cabinet was no more than an administrative procedure which had no effect on ministerial tenure.

This is another of the Zanu PF attempts to create a mirage using the law in order to confer legality on its actions. But for the embarrassment it would cause, Mugabe could easily have appointed his erstwhile ministers in accordance with Section 31D of the Constitution.

What Happens after June 30?

At the time, the AAG argued that Section 31E (2) of the Constitution states that a person may hold Ministerial office without being an MP for a period of up to three months. This raises an interesting question on the future status of Chinamasa and his colleagues after 30 June 2008. They ceased to be MPs when Parliament was dissolved on 28 March 2008.

Going by the AAG’s interpretation, they have three months until the end of June 2008 to hold ministerial office without being MPs. But that will be more than a month before the expiry of the extended deadline for the Presidential election run-off. It will be interesting to see whether Mugabe will make new appointments at that time or they will continue purporting to be ministers. Or will the run-off in fact be held before June 30?

Zimbabwe provides a perfect case study of the moral hazard of having the player who is effectively in charge of the referee. It is the equivalent of the boxer who upon being felled by his opponent takes his time to recover from the canvass and to regain control of his faculties, comfortable in the knowledge that the referee is his man. The referee will count slowly, yes, he may even help him to his wobbly feet, grant him an extension of time to recover in his corner. It is nothing but a charade.

They will continue to play and hide and seek in the labyrinth of the law because they know that this is an election they would rather not have. They know that electoral victory is no more than a very distant mirage.

Alex Magaisa is based at Kent Law School, UK and can be contacted at wamagaisa@yahoo.co.uk
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