New Zimbabwe.com

Interview: Moyo on election timing dispute

ZANU PF politburo member Jonathan Moyo, spoke to SWRadio Africa’s Violet Gonda about his party position on the on-going election timing dispute. Moyo explained why Justice Minister Patrick Chinamasa filed an application that the MDCs claim is designed to fail at the Constitutional Court and also insisted that President Robert Mugabe will not send electoral amendments to Parliament as demanded by the MDC formations.
Violet Gonda: On Wednesday the Constitutional Court will hear the dispute over the election date and my guest is Zanu PF politburo member Jonathan Moyo, with his party position on the ongoing elections dispute. I first asked Professor Moyo for an update.
Jonathan Moyo: The reports that there’s supposed to be a consensus application by the three parties mainly Zanu PF and the MDC formations in the inclusive government is the figment of the imagination of someone who is not creative at all because there is no such thing. The fact of the matter is that an application was filed by the Minister of Justice and Legal Affairs Cde Patrick Chinamasa on last Tuesday and the next day he followed on that application by lodging an application for the matter to be heard on an urgent basis. There was a hearing on the urgency and a determination was made that all the parties cited in the case including the applicant should file their papers on Monday and that the case has been set down for a hearing or arguments on Wednesday.
Of course during the hearing on the urgency, the Prime Minister through his lawyers sought to introduce a letter claiming that the parties in the inclusive government were still seized with the matter and that the matter should be stood down or even withdrawn until the parties agree on a so-called consensus application – but they have already drafted an application, the MDC formation, which they hope would replace Minister Chinamasa’s application and it’s not a consensus application. It is a draft application by the two MDC formations and not with the participation of anyone in Zanu PF and certainly not with the participation of Minister Chinamasa but they would like Minister Chinamasa to sign that application.
Violet: Professor Moyo, the MDC formations said that the Principals, including president Mugabe, met last Wednesday and decided that the Justice Minister Patrick Chinamasa, the Finance Minister Tendai Biti and the MDC President Welshman Ncube should sit down and work out a document that Chinamasa will take to the Constitutional Court and that the one that he sent was not the document that represented the views of all the political parties and that President Mugabe actually agreed to this. So are you saying that they lied?Advertisement

Moyo: Yes I’m saying that they lied, and they are not lying for the first time they have lied many times before, the bottom line is that they are not the presidents’ spokesperson, they do not speak for the president either in his capacity as the head of state and government and commander in chief of the Zimbabwe Defence forces or in his capacity as President and First secretary of Zanu PF.
The fact of the matter is yes there was a meeting on Wednesday, the MDC formations brought a lot of people who are not even members of the government – who are lawyers – and just like they did in SADC, they tried to turn that meeting into a court, making all sorts of arguments, pretending these were legal arguments and so forth. And in the end Welshman Ncube came up with a proposal that he wanted to engage Minister Chinamasa on the narrow issue of the extension of the date and was joined by Tendai Biti in that regard and indeed they were asked to discuss so that Minister Chinamasa would get an idea of what it is that they were proposing.
It was at that meeting where Minister Chinamasa said to them feel free to make your proposal. They made the proposal in the form of an application or an alternative application alone. It was delivered to Minister Chinamasa, they did not sit with him, they sat heaven knows with who, and presented him with a draft application which was treating Chinamasa as the applicant and them as the respondents and therefore creating a situation where they were going to respond to their own application which is an unacceptable arrangement. And it was not drafted in such a way as to say everyone was now an applicant and they were going to apply to the constitutional court for an extension as parties in the inclusive government. In fact, it was drafted in such a way as to leave Minister Chinamasa at risk of committing perjury because the application is based on falsehoods.
Fundamentally, it is quite strange and this point needs to be emphasised that the very same MDC formations led by Tsvangirai and Ncube went to Zuma, lobbied SADC and went to the summit on the 15th in Maputo alone with the support of Zanu Ndonga, Dumiso’s Zapu and Simba Makonis’ MKD not with Zanu PF, not as the inclusive government and they attacked Zanu PF.
Violet: But didn’t SADC say to all the political parties in the inclusive government that they should go back and sit down and … (interrupted)
Moyo: No, no, no no. Let me first finish this. This is a very important point, you cannot go to SADC alone and you choose the political parties and in this case they chose Mavambo, Dumiso’s Zapu and Zanu Ndonga and they go there and the presentations they made are then attached to a report to the facilitator. And they attack Zanu PF inside the summit, they attack the court judgement and they come out celebrating claiming that they have humiliated the President in the summit. Claiming that Chinamasa has given the President the wrong advice and when we are here they want to go to the Constitutional Court as the inclusive government and speak with one voice, that is totally unacceptable.
And you are asking did SADC not say that the parties should go together? No they said the government of Zimbabwe, the relevant point in the Communiqué says the government should do so, and in the deliberation it was agreed that it’s the Minister of Justice who was going to approach the court. Tendai Biti boasted on Facebook and other social media that Minister Chinamasa has been directed to do so, the same with Welshman Ncube. During the deliberation, it was agreed that because he is the minister who administers the electoral law, he should go on behalf of the government to seek an extension and that is exactly what he has done!
Violet: Well the MDC formations say in last week’s cabinet meeting, it was agreed the parties would speak with one voice and it was also agreed that the Principals would meet and map out an election road-map.
Moyo: That is what they are saying. You can believe them at your own peril. The record in terms of the law and the fact is that there is a Constitutional Court judgement made on the 31st of May that elections should be held by the 31st of July and the President has complied with that judgement. These are facts. They want to turn everything into a political matter. You cannot have the rule of law if everything is supposed to be political, if everything is supposed to be negotiated. The reason the Constitutional Court came up with that judgement is that it found that elections should have been held in Zimbabwe on the 29th of June, and that the time for calling for those elections had run out and that therefore there was no rule of law in Zimbabwe as regards the electoral process, and that in order to restore the rule of law in connection with the electoral process, the President had to issue a proclamation fixing a date for the election to be held not later than July 31st and the President has done so. We cannot have a situation where people now resort to turning government institutions into their instruments for political parties.
Violet: Professor Moyo, how do you respond to accusations by the MDCs’ who say that Zanu PF is trying to make the Constitutional Court throw out the application and that Chinamasa has told the court that; Mugabe is happy with the July 31st court order but that it’s Tsvangirai and Ncube who want this and it was also a directive by SADC? It’s also said Zanu PF is turning the Constitutional Court into their own instrument and it is clear that the court is acting in concert with Zanu PF hardliners?
Moyo: The last point, for them to say the Constitutional Court is acting in concert with so-called Zanu PF hardliners is in contempt of court but to say that the application by Chinamasa is wrong because it confirms or affirms the fact that the President is happy with the court judgement and that it is being filed at the instigation of the MDC formations and that this is the consequence of directions or instructions from SADC, that is true. Chinamasa is signing an application, an affidavit under oath. He can’t lie. If he lies he is committing perjury.
It is common cause in the public domain that the President has said he is happy with the judgement. Why should we lie about that? In order to assist the MDC formations? It is also true that he has complied with it. Why would the President comply with something he is not happy with, something he doesn’t respect? It is also a fact that the MDC lobbied Zuma and lobbied SADC and that Welshman Ncube went there and behaved as if the SADC summit was a court, making legal arguments before people who are neither judges nor lawyers and thinking that he has dazzled them with legalities and so forth. All these things are a fact.
No one has indicated that the affidavit filed by Cde Chinamasa contains falsehoods. They are unhappy about those truths because they feel exposed that these truths have now been placed before a competent authority which has the capacity to tell lies from truth and to do so by applying the law.
Violet: They also say in Chinamasa’s affidavit in court he deliberately does not point out the constitutional problems with having elections on July 31st.
Moyo: Why should he? This is a ridiculous view. He cannot point to things which he is not aware of because the President has complied with the court and his compliance is in accordance with the constitution, in accordance with the judgement of the court and in accordance with the electoral law. Now, Violet, if they make all these allegations even the one you have just referred to right now, they will be managed by the facts or through the facts that they are the respondents in this case, they are stating as they are not bystanders who are hopeless and helpless and yet they are direct participants. They have ample opportunity to make their own case, it is wrong for them to expect Chinamasa to make the case for them as if they are not party to that case.
Violet: But can you tell us the Zanu PF response to this issue of not having enough time between now and 31st July to ensure that all the electoral processes are completed. How are you going to manage that?
Moyo: That is not legally correct. The only people who have the authority to interpret the law, whether as regards the time or anything else which is a matter of law is the court, it is not you or any other journalist, it is not Welshman, it’s not Chinamasa, it’s not Tsvangirai; it’s the courts. There is no legal ruling which says there is no time.
Violet: The MDC formations are saying that the law says there has to be a 30 day voter registration and inspection and that you can only have a voters roll once you have done that. They also say you need 30 days between nomination court and elections and that it is not possible right now to lawfully do these things before 31st July.
Moyo: No they are talking nonsense! I think we have a problem, you are not listening to me because I’m answering exactly to that. The court judgement, the ruling of the 31st May by the Constitutional Court took those things into account. But the more important issue for you please to consider, the law is not what Coltart says it is or what Welshman Ncube says it is or what Tendai Biti says it is or Magaisa or Chris Mhike or the MDC formations. The law cannot be what they claim. The law is what the court says. Only the court can interpret the law. There has been no ruling to the effect that there is a problem with regards to any of the things that you are alleging.
When judgement of the Constitutional Court came out on the 31st of May, Tsvangirai said that the court had overstepped itself and had no mandate to do so. When the President complied with that judgement by issuing a proclamation fixing the 31st of July as the date for the election, Tsvangirai again issued a statement challenging that date and putting his own date and basically saying these are political matters and not to be decided on legal grounds. He made the same claim before the SADC summit. This is where the problem is!
These people are failing to realise and appreciate a simple issue Violet, namely that at midnight on the 29th of June, which is next week Saturday, there will be no one who was elected in 2008 will still have the right to exercise anything, every term of office elected in 2008 expires at that time. This is what the court said and the court said elections, taking into account that time frame which you are saying leads to 44 days should have been called at least some time in March or April and because they were not, Zimbabwe does not have the rule of law.
Violet: Why was it not called then?
Moyo: It was not called then because the new constitution had not been completed. It was assented to on the 22nd of May and we know why people were playing games with it because it was a ploy if not a plot to ensure that we create a jungle situation after the 29th. And it is very very fortunate that the spirits of Mbuya Nehanda and Lobengula intervened, thanks to the court application by that individual citizen Jealous Mawarire that we at least have the restoration of the rule of law and legality underway.
Violet: People are saying you sponsored Jealousy Mawarire to actually take this matter to the courts.
Moyo: And now they will say I sponsored you to interview me. I think that this whole idea that everything is okay when they do it, the very same people you know who are sponsored by these foreign governments but when Zimbabweans ask for themselves and challenge these people, it is somebody else who is sponsoring them. I think for a party which claims to respect people, which claims to respect the rule of law to make such scurrilous allegations is shameful. It’s as if Jealousy Mawarire did something illegal by going to the courts. He has an organisation that is involved in elections and democracy law. I think this is quite preposterous but it really really shows us that we have people who don’t respect other peoples’ views and who don’t respect their rights in terms of the law.
Violet: But a lot of Zimbabweans say that Zanu PF does not respect other peoples’ views and also … (interrupted)
Moyo: What? Listen you cannot say that about us that as a blanket argument…
Violet: Professor let me finish…
Moyo: No, no, no you cannot get away with that. You must raise it in relation to what we are talking about. We are talking about an allegation that a citizen was sponsored, now you can’t suddenly say those who are making this allegation don’t respect that citizen, there are others who say Zanu PF does not respect, I think this kind of reasoning is unhelpful… (Interrupted)
Violet: So let me say ….
Moyo: You are comparing oranges and apples. You are trying to equalise where equalisation is unwarranted.
Violet: Professor Moyo?
Moyo: Yes?
Violet: Don’t you think your partners in the unity government also have that right to go to the courts and say ‘the time that you have given us is …’ (interrupted).
Moyo:  Who has stopped them? Instead of going to the courts they are going to Zuma.
Violet: But, you are not allowing me to finish. We cannot do it like this.
Moyo: I thought you had finished.
Violet: They are saying they have a right also to go to the courts and say the time that is left is not enough for all the electoral processes that need to be done.
Moyo: Zanu PF has not said that MDC should not go to court to make their presentations. They have a right to go and make those cases, what we are saying is, they do not have a right to go to SADC and make ridiculous arguments pretending to be the best lawyers that God has ever created, making arguments before a forum which is not a legal forum.
Violet: But professor, just going back to the practical issues and I just want to get your views on this as a legislator, is it not correct that in numerous wards, the voter registration process only begins after the nomination court on the 28th of June?
Moyo: That is not true, it is absolutely not true. First of all in Zimbabwe, voter registration is a continuous exercise; you can always register at any time of your choice, go to any of the offices around the country and register. In terms of paragraph 6:3 of the sixth schedule of the new constitution, there was supposed to be a particular programme of voter registration intensified to last at least 30 days. Constitutionally and legally, that started on the 23rd of May. In terms of logistics, practically, politically, it might be another thing but there was registration continuing.
Then, we have a tradition here in Zimbabwe that happens every time we have elections before the closure of the voters roll for inspection that we have mobile registration teams around the country in the rural areas to reach people who may have difficulties going to the offices of the registrar general and this has been happening. And normally that happens for no more than between seven to fourteen days. But in terms of the presidential powers that amended the electoral act to align it with the new constitution, section 11 of those amendment regulations allows the registration exercise to continue beyond the nomination until the 9th of July. In fact we would have had really the longest intensive exercise ever done before an election in our country.
Violet: You mentioned the presidential powers act and I think your colleagues are saying the presidential powers act is not to be used if the constitution says what is supposed to be done right now is by an act of parliament and this is not what happened. They say that what the President did was actually illegal. What can you say about that?
Moyo: They are saying that but they are just the same like you and me, they have no particular authority to interpret the law. If they want that to be the actual legal position, they must go to court. They have had ample time to go to court. These regulations were gazetted on the 12th of June and Tsvangirai issued a statement – when they were gazetted – to say he had instructed his lawyers to challenge the publication of the amendment regulations as well as the publication of the proclamation, and he did this before going to Maputo and when he was in Maputo, it was brought to the summit that he had signalled that he would go to the court and then he quickly told the leaders no no no, that was just an intention. If he knew that it is a valid intention driven by well-grounded law, why didn’t he go to court?  That constitution gives only the constitutional court as the final authority to do so. So just because some Tom here, Jerry here, Jane there says this is the situation about the presidential powers doesn’t make it the legal position, it’s simply an opinion and like the Americans say, an opinion is like our behind, everyone has one.
Violet: Is it correct that the President illegally used the Presidential Powers Act to fast track the amendment bill?
Moyo: The answer is a resounding no, absolutely not because no court has found anything to that effect, nothing of that sort. What is correct is that there are some people like Tsvangirai, Ncube, Coltart, Magaisa who keep ‘gaisaring’ that point. They keep making that allegation. The allegation can’t be true simply because they are making it. If they believed in that allegation, they should have gone to the court, that is why we have a court, but they have just gone to newspapers and summits which are run by people who are neither judges nor lawyers.
Violet: Is that amendment bill ever going to go through parliament?
Moyo: Why? The President has the legal authority to do what he did and the current constitution allows it. The new constitution with the interpretation is open, we cannot agree with what these colleagues of ours have said. That section which they have referred to is not yet operational. It will be operational only on the effective date of the new constitution. The bulk of the new constitution is not yet operational. It will be operational when the next President is sworn in.
So you get guys jumping all over the place. They even alleged that the President should have consulted or sought the approval of the cabinet before gazetting both the Presidential Powers Temporal Measures amending the electoral act and the proclamation for the election date when in fact the constitution 31H, that they have been citing, actually allows the President to exercise powers directly, and there are three clauses in that section which unambiguously allow him to do that. But listen, I’m prepared to say if the President was wrong in his interpretation and application of the law, the only forum to prove or establish that is the court of law.
Violet: But what they also say is Zanu PF would have tied them up in all these legal cases when they should be campaigning.
Moyo: These are falsehoods, and everyone knows them to be such, they are coming from the same people who have been boasting that they were ready and Zanu PF is not ready for elections. The court right now if you look at the role of the constitutional court in terms of the cases that will be heard on Wednesday, they are all filed by the MDC not Zanu PF.
Violet: Well, many believe what is happening right now is a ploy by Zanu PF to spread out the processes until it is too late to even take the amendment bill to parliament.
Moyo: The President is not taking any amendment bill to parliament. He is not. He has already gazetted it. It’s law. Those regulations are law as we speak right now, so please understand this; he is not going to parliament. The MDC formation and the likes of Jameson Timba were boasting in the media saying that we are going to deal with Zanu PF in parliament by holding the passage of the Bill so that we buy time and frustrate the Presidents’ capacity or ability to comply with the court order. Now they went public and in typical fashion, they were celebrating. They like talking too much in bars and then being quoted and reported in the media and this has been useful there in Maputo where they celebrated that in their view they had humiliated the President, they had won, they had performed wonders and so forth, only to realise that no, you need to go to court and the authority to do that is Chinamasa – but you had already thrown mud all over the place. I just think that it would be far much better if I could give free advice to our friends and colleagues in the MDC formations. Stop behaving like children in the media! Stop using the media as a playground for childish games!
Violet: I guess a lot of Zimbabweans are actually feeling that all the political parties in this inclusive government are using the general public, and it’s like monkey games that we are seeing – everyday there’s something weird that is happening making people worry that this is just going to lead to another GNU.
Moyo: First of all I don’t agree with you that everybody is doing that when a Constitutional Court makes a judgement, that’s not monkey games in the media, when the head of state complies with that judgement that is not monkey games. The bottom line is that an election is held not in terms of political whims of the parties in the government of the day, an election is of the interest to all Zimbabweans.
I think there have been some quite awkward developments and moments in the last four years which have shown us that what you call a GNU for me it never has been a GNU, this has been an inter-party government or a GPA government, it’s not good for the country. This has not been good for the country in terms of the policies. And worse, because some elements in it have used the GPA as a statement of some surrender of our sovereignty to either South Africa or Zuma as the facilitator or SADC. And even in violation of that very same document because it recognises that Zimbabweans have the sole prerogative of running their own affairs. So well to the extent that all political parties somehow have to express themselves through  the media, perhaps you have a point, but the way the media has been used by the various parties is not the same. We are not in the same basket.
Violet: Well, the MDC formations are actually saying media reforms are one of the areas that need to be sorted out before the elections.
Moyo: Any political party which tells you that there must be reforms before they go for an election especially two weeks or so before an election or less now when the nomination court sits on the 28th of this month which is exactly a week from today, if someone tells you a week before the election process is to start in earnest, you must have reforms, then there’s something fundamentally wrong about that person. Parties contest elections in order to win and bring reforms. Parties don’t say let’s have reforms before we contest, that is ridiculous. I think this is a sickness. You are the one who should bring reforms, anything that has not been agreed to can’t be a reform. We agreed to the new constitution – it is the most far reaching fundamental reform that you can ever get and it catches everything including the media and anything else in our laws and our practice which is inconsistent with the provisions of the new constitution as regards the media is invalid and the courts are there to confirm the invalidity.  So when you hear people who have just adopted a new constitution which introduces reforms failing to recognise that fact and still speaking as if that fact has not occurred, then you know there is something fundamental that they don’t have.
Violet: Well the media is another issue that needs a whole debate and I’m running out of time but what happens when you have service chiefs who publicly show their allegiance to a particular party, do you think that is fair?
Moyo: Well, they don’t show allegiance to a particular party, that is an unfair allegation. They have shown allegiance to the liberation struggle and the gains of that struggle because they participated in it and they know that we have fallen daughters and sons of the revolution who paid the ultimate sacrifice through their lives to bring us this freedom and democracy that we enjoy today, all of us including the MDC formations. It so happens that there is a historical connection between that fact and Zanu PF because it is Zanu PF which fought the liberation war. Or putting it differently, the liberation war was fought under Zanu PF as represented by Zanla and Zipra respectively.
Now if certain statements have been made and so forth, I’ve seen some reports suggesting –  it’s even in the facilitators’ report to the last summit of SADC in Maputo on the 15th of June – that these people should make statements disassociating themselves from what they said in the past in light of the new constitution, that is barbaric. There’s no law which is retroactive. You don’t come up with a law today to say ‘you said that statement in 2002’; it’s nonsensical and you know, we are not going to be forced to do nonsensical things just because some people have a problem.
Tsvangirai said ‘Mugabe go out peacefully or else we will remove you violently’, has he ever retracted that statement? If he is willing to retract that statement, let him show by example. We heard him, he said it at Rufaro Stadium, he has never retracted. Now he wants to tell us Nyikayaramba retract this, Chedondo this one, and this one because we now have section 208 in the new constitution.  There are some lawyers who were trying to come up with this argument that there’s a new constitution, some of the provisions have become operational, in the light of those provisions, Jonathan Moyo, if you called me a dog yesterday, that was hate speech, retract that in terms of the new constitution, that’s foolish. That’s really barbaric. There’s no constitution which operates like that.
What is happening right now is the confirmation of a very simple fact that on the 29th of June, this government of the GPA and so forth will come to an end, that is a fact so it is natural for parties which are running primary elections, which are now putting their manifestos to the public to be trembling, which is why we need a referee who is not one of the parties and who is not an external body, who is not Zuma, who is not SADC, who is not the AU. The referee is our own court, if you think the referee has no legal mandate to officiate then you have a problem, don’t play the game.
Violet: It’s said that even after the dissolution of parliament, there are ninety days where the President can actually call an election. The President is allowed ninety days?
Moyo: You know Violet, can you hold on there. This is where my compatriots have a problem; you continue to trust your colleagues over your court. The court has rejected that argument. The court has spoken that’s false. As we speak right now elections are on the 31st (of July) because that’s what the court said and the President has complied and issued a proclamation in accordance with the judgement of the court. But of course you and I know there is a pending application seeking an extension of that date but that has not been granted or rejected.
Violet: On the issue of political parties playing games can you tell us, why Zanu PF ministers walked out of a crucial cabinet meeting that was going to discuss the election road-map?
Moyo: First of all I think it’s reckless of them to talk about cabinet issues because cabinet deliberations are protected and they know this and they have taken an oath to that effect but it is not correct to say that the particular issue was on the agenda as the main issue. Secondly, the allegation that Zanu PF ministers walked out is false because the fact is the cabinet is coming to an end and elections are upon us. We in Zanu PF had a very important national election directorate meeting and critical members of the election directorate include the same cabinet ministers we are talking about such as Chinamasa and others. In fact I don’t think Chinamasa even managed to go to that cabinet meeting because he had serious business elsewhere and had to excuse himself.
Violet: Finance Minister Tendai Biti actually says that there’s a chaos faction in Zanu PF and he mentioned Patrick Chinamasa and of course other people say you are a part of this chaos faction that is bend on causing confusion. Some people imply that the President is not really in control.
Moyo: It’s flattering to note that Tendai Biti has nothing to say about the MDC whose leadership he is seeking from Tsvangirai and has everything to say about us and is following our party. That shows we are the only relevant party to talk about and his view that the so called chaos faction and so forth is typical of his delinquency. He is known for coming up with such hyperbolic descriptions of everything under the sun and there’s no need to take him serious on that. But he is a member of the inclusive government and if within the inclusive government, he’s being kept busy and sees that as chaos in the sense that he is unable to implement the instructions he got from his sponsors to grab power from within.
Violet: And a final word Professor Moyo?
Moyo: I think that we should as Zimbabweans be proud of our country, be proud of our constitution, of our institutions and of our laws and of our culture. We must be our own liberators, shape our own destiny. This business of people who want to run our country, becoming cry-babies, crossing the Limpopo thinking that there’s some kind of a big brother who should poke his nose into our affairs must come to an end. We will never ever reach a time when we will agree on everything, that is the nature of the human spirit. We were created with differences but there are many many fundamental things that tie us together. Let us focus on those things when it comes to such issues as determining our own national affairs and running them.
Violet: Thank you very much Professor Jonathan Moyo for talking to us on the programme Hot Seat.
Moyo: You are welcome.
To contact this reporter email violet@swradioafrica.com or follow on Twitter @violetgonda