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The legal hurdles on road to elections

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Lawyer Derek Matyszak of the Harare-based Research and Advocacy Unit was a guest on SW Radio Africa’s Hot Seat programme. He gives reporter Violet Gonda his opinions on the key reforms that are necessary, as a matter of law, before elections. Why does the legal expert say security sector and media reforms are now not necessary before elections? How will the proportional representation system work and why does Matyszak believe there will be intense infighting in the political parties over these special seats reserved for women?
Broadcast: May 3, 2013
VIOLET GONDA: My guest on the Hot Seat programme is lawyer Derek Matyszak of the Harare-based Research and Advocacy Unit and today he’s going to give us his legal opinion on reforms needed in Zimbabwe before elections. So let’s start with that Derek.
DEREK MATYSZAK: Well you could basically divide the reforms into two types: those that are necessary as a matter of law and those which are politically desirable in order to ensure a free and fair election. So those in the first category include the Electoral Act – it has to be amended to conform to the constitution; the Local Government Act needs to be amended and the Provincial Councils Act require amendment to bring them in line with the constitution. In the second category are probably first and foremost, media reforms and there also needs to be reforms to the way that the security sector operates and the way the criminal justice system operates.
GONDA: I understand that some of the political parties are calling for an extension of parliament to allow reforms to be implemented; so is there any need to delay the life of parliament or even extend the date of elections so that these reforms can be implemented?
MATYSZAK: Well at the very latest the political parties should have been aware that amendments to the Electoral Act and the Provincial Councils Act etcetera were needed the moment they agreed on the COPAC Constitution. So the drafts people should have been working on those amendments right from that date that the COPAC draft was agreed. So it’s simply a question of when parliament reconvenes on the 6th of May, for the proposed Bill to be brought before parliament; the parliament is quite accustomed to fast-tracking these kind of Bills and there’s absolutely no reason why the necessary legislation – those three essential bits of legislation – couldn’t be passed by parliament prior to June 29th when parliament will automatically dissolve. So there’s no need to extend it on that basis.Advertisement

GONDA: What happens if parliament is dissolved without these three amendments?
MATYSZAK: If parliament is dissolved without the amendments there still exists the possibility of the president using the Presidential Powers Temporary Measures Act to push this legislation through; however it’s obviously undesirable for the president to use this legislation when he is in fact a player in the forthcoming election. However those objections could be muted if the legislation that goes through is drawn with the consent of the three main political parties.
GONDA: What key changes are required to the Electoral Act?
MATYSZAK: The main change required to the Electoral Act arises from the fact that the new constitution introduces or reintroduces the system of proportional representation – so the Electoral Act will have to set out the form of the proportional representation and the details of the proportional representation that will be used in the forthcoming election.
GONDA: What are the arguments for proportional representation and what are the arguments against?
MATYSZAK: Well with the “first past the post” system we have the possibility of excluding parties from parliament who might nonetheless enjoy the support of a substantial number of the voters. With the “first past the post” system you just need the 50% plus one or 51% in each constituency. So it’s quite possible, though unlikely but it’s theoretically possible, in every constituency you could have a situation where one party wins with 51% of the votes and another party loses with 49% of the vote; the party that garners 51% of the vote in all constituencies will win every single seat in the house of parliament – that would exclude the constituents who gave 49% of the vote to the other party. So despite having a substantial power base that party would be excluded entirely.
On a proportional representation system, the seats will be allocated in accordance with the number of votes garnered by each party. So on that system, one party would get 51% of the seats in parliament and the other party would get 49% of the seats and would thereby not be excluded from power entirely.
GONDA: Many are saying that with the problems that we have seen with the partners in this unity government, the way they don’t trust each other, it’s not going to be easy to work out who gets what after the vote. Do you agree with this?
MATYSZAK: Yes certainly. First of all just bear in mind that not all of the House of National Assembly seats will be by proportional representation; it’s only the 60 seats reserved for women that will be on the basis of proportional representation and 60 of the seats in the 80 seat Senate will be on proportional representation. So we have a mixed system of both “first past the post” and proportional representation. What is then likely to happen is that you might get current MPs at the moment who are feeling insecure about retaining their seats and they might think a safer way to get back into the parliament is through the proportional representation system,
So what will happen for example in the case of the women’s seats, the seats reserved for women, there will be six seats per province – so each party will be required to submit a list of at least six people per province that they would like to see attaining those reserved seats in the National Assembly. So if for example the MDC has a list of six women for say Midlands province and they win two thirds of the vote – that means the first four people on that list will attain those particular seats. So you can imagine there will be some competition for people not only to get onto the list but the actual place they will have on the list because the person who is at the top of the list has a greater chance of getting into parliament on that basis. So there’s likely to be some rather intense infighting within parties as the jostling for places on the party list is determined.
GONDA: Is this a fair system and are women a special interest group?
MATYSZAK: Well that takes you into the whole debate about affirmative action etcetera which is another path that would require a detailed discussion on some other occasion but proportional representation is favoured in many jurisdictions that I’m talking about – a pure proportional representation system is favoured in numerous countries and it’s certainly better when a country is deeply divided society like Zimbabwe because you avoid the winner takes all kind of scenario.
But there are quite a few different systems of proportional representation, which can yield very different results. You can, for example, have proportional representation system, which requires a party to achieve a minimum number of votes before they can get a seat. So suppose for example in one constituency, the smaller MDC only secures 10% of the votes, should that be sufficient for a seat or should one have a threshold of say 30%? So these different systems will yield very different results and the biggest differences are what happens to the smaller parties and certainly the MDC-N has the biggest interest in negotiating which particular system of proportional representation is eventually included in the Electoral Act.
GONDA: Is proportional representation based on political will or is it legally binding? By this I mean what chances are there that political leaders can make promises but then change their mind on candidate selection for these special seats after the elections?
MATYSZAK: Yes, although it would be very unusual; it has happened before – I think it happened in Guyana that the elections took place without the lists, the proportional representation lists, being published before the election but that’s very anomalous and very unusual. Normally the Electoral Commission requires the political parties to submit the lists of the people who will attain seats by virtue of proportional representation so that the electorate knows who they are actually voting for on the basis of this proportional representation system. So once the parties have submitted their lists to ZEC they will be bound by those lists.
GONDA: But is the electorate really voting for these people who will take these 60 seats?
MATYSZAK: Well no that’s the thing about proportional representation = is that it’s not constituency-based. So whereas on a constituency-based election you know this is your candidate for the constituency, that is the person who represents your interests in the constituency and you vote for her or him accordingly. With the proportional representation system you’re voting for the political party and you can only see indirectly; ‘well if this party gets this percentage of the vote then these people on the list will attain seats in parliament’, so it’s a rather more indirect way of going about it.
GONDA: What about those other two amendments that you said are important – the Local Government Act and the Provincial Councils Act – what exactly is needed to be tweaked?
MATYSZAK: Well there are some minor changes to the way in which Local Government is to be run in the constitution, which I don’t recall offhand but the structure of the Provincial Councils is very different under the new constitution and ten members of the Provincial Council will also be appointed on the basis of proportional representation. And the Provincial Council itself will be electing the chairperson – so the present powers of the president to appoint the provincial governors will be removed by virtue of the new constitution and that’s one of the most significant changes as far as presidential powers is concerned in the new constitution.
GONDA: Can we talk about some of those politically desirable reforms that may not happen before elections and let’s start with security sector reform.
MATYSZAK: Yes, the problems with the security sector – there’s a lot of work to be done on security sector reform and that’s not something that can take place in a matter of months and in fact it requires several years to have effective security sector reform. It would be more correct to be looking at security sector governance and the reason why I say that’s not going to happen is because the opportunities that have presented themselves to try and make sure that it does happen have passed by without being seized.
So for example, in January of last year, all the heads of the security sector came up for reappointment to their offices and they were all reappointed with the acquiescence it seems of the MDC. A lot of the problems with the security sector stem from the very top of those sectors in the way that the security sectors are being governed – that was the opportunity to say well it’s time to revisit these particular posts and the people that occupy them. That opportunity was lost.
The second opportunity to engage in security sector reform came with the changes to the constitution and earlier drafts of the constitution did in fact attend to the issue of security sector governance. Those proposed amendments were taken out in the final COPAC draft and left the situation as it currently is, so there was an opportunity to do security sector or reform the governance of the security sector when drafting the new constitution – that opportunity was also lost no doubt due to Zanu PF obduracy but that obduracy remains so that reform is not likely to take place.
GONDA: Was the security sector reform part of the GPA, part of the Global Political Agreement?
 
MATYSZAK: Well…
 
GONDA: The reason I’m asking that is because Defence Minister Emmerson Mnangagwa is quoted saying that is was never part of the GPA.
MATYSZAK: Well I think to some extent Mr. Mnangagwa is correct; the MDC is correct in the fact that security sector governance is in fact mentioned: there is a clause which requires or which indicates the security sector should be impartial and does not belong to any particular political party but there are no mechanisms by which it said that must be implemented and those would be the reforming mechanisms.
GONDA: There seems to be a problem with the politicization of the army or the security sector where you have on the one hand army generals have said they will not salute Prime Minister Morgan Tsvangirai but on the other hand the MDC Minister for Defence, Giles Mutsekwa recently revealed that the MDC has been holding secret talks with the service chiefs. What can you say about this?
MATYSZAK: Well I think Mutsekwa is trying to depoliticize the security sector. Once you have the security chiefs coming out and saying that they will not salute a president who did not take part in the liberation struggle that can be interpreted as a threat to engage in a coup. Of course the reason they phrased it like that is deliberately to leave it ambiguous and that’s not the only interpretation you could put on that. But certainly it is a political statement which essentially is a threat to the electorate and should not be tolerated and SADC should make some very clear statements around that.
GONDA: If indeed the MDC are talking to the army generals, should they be making this public?
MATYSZAK: I don’t see why not. I think too many of the talks take place in secret. I think the MDC should make a clear demand that the security sector should undertake to abide by the results of the election and SADC should also make that demand of the security sector to get them to state clearly that they will abide by the results of the election. That is a requirement of the SADC principles and guidelines on elections, it’s the basic democratic norm and given that the security sector has made or the security sector chiefs have made these ambiguous statements they need to clear the air in this regard.
GONDA: Service chiefs are appointed by the president, the army generals?
 
MATYSZAK: Yes.
GONDA: So if the appointment of these generals or service chiefs is the prerogative of the president, is it not better to leave this problem for now and whoever takes over government after elections can then implement the policies that they want?
MATYSZAK: Yes well first of all although the president appoints the security sector, the appointments, reappointments etcetera, under the GNU those all have to be done with the consent and agreement of the prime minister and that provision has been ignored and the appointments have all been made unconstitutionally. The problem with the new constitution is that a huge amount of power remains vested in the president, including the appointment of the security sector people though there are some very badly worded and ambiguous provisions, which suggest that the people who are currently in those positions shall remain in their position.
There’s also a not ambiguously worded provision which says that the current Attorney General shall continue in his job and shall continue to be in charge of prosecutions – so if Morgan Tsvangirai wins the elections, he wouldn’t be able to change that.
But the problem with the new constitution, that because it vests so much power in the president you have a situation that if you have an authoritarian undemocratic president elected into office, you will have an undemocratic and authoritarian governance in the country. If you have a president who is human rights orientated and subscribes to liberal democratic values then you will have liberal democratic governance in the country. But that is why it is a bad constitution –the governance of the country should not depend on the whims of a particular individual. It should depend on the machinery not the person who operates the machine.
GONDA: So basically you are saying a new government will not necessarily have the powers to change the people in the security sector even if they wanted to?
MATYSZAK: They cannot change the position of the Attorney General, that’s written into the constitution; the provisions relating to the heads of the army etcetera, those provisions are rather ambiguously worded and I wouldn’t say that it’s clear that they can do so. I wouldn’t say that it’s clear that any of the new presidents couldn’t do that. As I say it’s badly worded provisions, which might be ironed out when the provisions come to be passed as an Act.
GONDA: Is this something that can be amended before the new constitution is passed into law?
MATYSZAK: Yes there are certain glitches if you like in the new constitution, there are certain sections which are badly worded and that needs to be sorted out before the provisions are passed into law. There are also a few contradictory sections etcetera – these kinds of errors are normal when one is drafting complicated legislation like a constitution and hopefully they’ll be sorted out before the Bill is presented to parliament.
GONDA: You also mentioned the issue of media reforms. The MDC formations are saying that media reforms are needed before elections can be held but what can be realistically be put in place before elections?
MATYSZAK: To some extent it’s not a legal necessity but the new constitution has good provisions relating to the media which should try and, which should change this ridiculous situation where the electronic media’s dominated by one voice in the country – the voice of Zanu PF. I think we’re the only country in the region which has this ridiculous situation. The new constitution requires that or removes government interference to a large extent over the licencing of radio stations but to try and get a new radio station licenced and a new Broadcasting Services Act in place prior to the elections is a virtual impossibility.
GONDA: The state broadcaster, the ZBC is considered not to be impartial, why can’t there be reforms at this institution before elections?
MATYSZAK: Well you would need to get some agreement from Zanu PF to have a more balanced coverage and of course as far as Zanu PF is concerned they already give balanced coverage. They do not regard News Hour as being Zanu PF Hour, which it quite clearly is – so one gets into subjective territory, which is quite difficult to argue about – what is and what isn’t biased etcetera. There are already provisions in place; there were provisions in place for the 2008 elections for the Zimbabwe Electoral Commission to make sure that the political parties had equal coverage on ZBC during the electoral period. Those provisions simply weren’t enforced. Whether the new ZEC will be able to do that is a matter for some debate.
GONDA: And Zanu PF says there is only one issue that remains and that is the removal of sanctions. What are your thoughts on this?
MATYSZAK: Well I can never understand this argument of Zanu PF. They keep on saying that Zimbabwe is under sanctions and then we find that Tomana has issued proceedings against the EU to remove sanctions against individuals so I don’t understand what Zanu PF is saying. Is it individuals that are under a regime of sanctions or is it the country? Because if it’s the country then that’s certainly not what the EU and the US state. There’s also no requirement in the GPA for sanctions to be removed. What the GPA says is that both parties shall work together to try and lift what they call sanction and my interpretation of that is that Zanu PF is then obliged to bring about the conditions which will cause sanctions to be removed and Zanu PF has singularly failed to do so.
GONDA: But you know the US government recently removed sanctions on two banks and one of them is AgriBank and the US ambassador told us that the banks hold the greatest opportunity to improve the lives of ordinary Zimbabweans and that they play a vital role in long term investments of the country. So doesn’t this contradict what they have been saying – that the firms under sanctions don’t hurt Zimbabwe?
MATYSZAK: Well nobody’s yet made any link between the measures introduced by the US and the UK and EU; nobody’s made any link between those measures and Zimbabwe’s economic collapse. Nobody has said these measures caused this financial problem, which caused these industries to collapse. That link has never been made and I don’t believe it exists. Certainly what the so-called sanctions regime has done is that it has created or given the impression that Zimbabwe is a pariah state. Well Zimbabwe is a pariah state and until it gets its governance and human rights act together it deserves to be treated as such so that is where sanctions have had an impact and the way to solve that problem is for Zimbabwe not to be a pariah state.
GONDA: Are there any circumstances, which you see, which we might find ourselves having another GNU?
MATYSZAK: Certainly I think it’s quite possible that both Robert Mugabe and Morgan Tsvangirai would like a GNU II at this juncture. I think both candidates probably think that they are unelectable at this point and they would quite like to remain in office through a GNU II. I don’t see that either of them could sell a GNU to their constituents at this point in time. However if we have a closely fought election which happened in 2008 it would make sense that there’s some sort of power sharing takes place but you would need an election for each party to determine their bargaining strength in that power sharing negotiation. So if there’s a GNU to emerge it needs to emerge probably after an election has taken place.
GONDA: But do they really need to sell a GNU to the constituents if they didn’t do this when they formed the coalition government in the first place?
MATYSZAK: Well they managed to sell the GNU successfully in 2008, in September 2008. I think the constituents now realize they were conned and they’re not likely to be conned so easily a second time round.
GONDA: What will the people really do about this?
MATYSZAK: As I said, I don’t think they could sell the GNU II to their constituents now; after the election the constituents might see the balance of power is such that we have no choice other than to do a GNU II but they would like this GNU II to look very different from GNU I.
GONDA: Thank you very much Derek Matyszak for talking to us on the programme Hot Seat.
 
MATYSZAK: You’re welcome.
To contact this reporter email violet@swradioafrica.com or follow onTwitter