By Jonathan Moyo
FOLLOWING the passage of the Constitution of Zimbabwe Amendment (No.2) Bill in Parliament this week, after the Senate gave its nod to agree with the National Assembly which voted for the Bill last week, critical questions with far-reaching implications have emerged about how and where Zanu PF got the votes to pass the Bill, which has shocking amendments, when it does not have the required two-thirds majority in the lower House.
The passage of the Bill has put into context why embattled President Emmerson Mnangagwa has been dithering on whether or when to cause the compromised Zimbabwe Electoral Commission (Zec) to discharge its constitutional obligation to call for the holding of parliamentary and local governmental by-elections occasioned by the unconstitutional recall of MDC Alliance MPs and councillors; why Douglas Mwonzora’s MDC-T has been threatening to contest those by-elections as the MDC Alliance under dubious claims that it owns the name; and why there have been growing calls that the MDC Alliance should rebrand and change its name to avoid a possible and unwinnable battle over the name in the captured courts, should the much-awaited by-elections be held.
While understandable, upon closer scrutiny, the calls that the MDC Alliance should rebrand and change its name in time for the anticipated by-elections are misplaced and not strategic, as are the calls that the MDC Alliance should boycott the by-elections or that it should contest them under its name.
To put this in clearer terms, from an action point of view, the MDC Alliance should consider a three-pronged approach:
· Save for broader and more strategic purposes, it should not rebrand or change its name for the by-elections;
· By-elections, if they are held, should not be boycotted; and
· While by-elections should not be boycotted, they nevertheless should be the primary focus of the MDC Alliance; to this end, its by-election candidates should contest as independents, to enhance the party’s presence in Parliament, while keeping open its branding options as an expression of its “Citizens’ Convergence for Change” initiative.
By way of unpacking this approach, it is important to understand why Mnangagwa is dithering on whether or when to call the by-elections; why Mwonzora’s MDC-T is threatening to contest the by-elections as the MDC Alliance and why Zec is delinquently failing to discharge its constitutional obligation to hold the long overdue by-elections.
On 30 September 2020, Vice-President Constantino Chiwenga, who also doubles as Health minister, issued Statutory Instrument 225A of 2020, “Public Health (Covid-19 Prevention, Containment and Treatment) (Amendment) Regulations, 2020 (No.4) whose import relevant to this discussion was that: “…the holding of any by-election to fill a casual vacancy in Parliament or in a local authority is for the duration of the period of the declaration of Covid-19 as a formidable epidemic disease, suspended, and if such vacancy occurred while such declaration is in force, no part of the period from the date of such vacancy to the date of the end of the declaration shall be counted for the purposes of section 158 (3) of the constitution”.
Section 158 (3) of the constitution of Zimbabwe provides that: “Polling in by-elections to Parliament and local authorities must take place within ninety days after the vacancies occurred unless the vacancies occur within nine months before a general election is due to be held, in which event the vacancies may remain unfilled until the general election”.
On 7 October 2020, Zec’s chief elections officer, Utloile Silaigwana, issued a press statement announcing that:
“The commission advises that the holding of by-elections remains suspended in line with public health regulations until the declaration of Covid-19 as a formidable pandemic has been lifted”.
Then on 1 March 2021, Chiwenga relaxed the lockdown restrictions that he had tightened up on 2 January 2021 under Statutory Instrument 10 of 2021; the relaxation covered a wide range of public activities, including allowing parliamentary public hearings.
Again, Silaigwana issued a press statement advising that Zec had lifted restrictions it had imposed on 8 January 2021 on voter registration and some field work, but that the conduct of by-elections remained suspended.
The fact that, throughout this episode during which by-elections have remined suspended, Zec has used press statements, and not its gazetted regulations, to maintain the suspension on the basis of Chiwenga’s Covid-19 statutory instruments is outrageously unconstitutional and scandalous in the extreme.
This fact alone tells the whole story why Zec is compromised beyond redemption, and why its chief elections officer and current commissioners are unfit for purpose and must resign or face rolling mass protests and petitions. One way or another this will come, given all its electoral misdemeanours.
Section 235 (1)(a) of the constitution provides that independent commissions, such as Zec, “are independent and are not subject to the direction or control of anyone”.
It is ridiculous and unacceptable that Zec has preposterously used the cover of Covid-19 to put itself under the control and direction of Chiwenga.
In failing to perform its constitutional obligations by relying on Chiwenga’s manifestly politicised statutory instruments regarding the holding of by-elections as provided under section 158 (3) of the constitution of Zimbabwe, Zec has wilfully and criminally violated section 2 of the constitution which provides that:
This constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
The obligations imposed by this constitution are binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.
Section 239 of the constitution imposes an obligation on Zec to ensure that “elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law”.
Zec has clearly gone rogue by failing to conduct by-elections in accordance with section 158 (3) of the constitution.
While Covid-19 has been given as the reason for the suspension of by-elections, the fact that Zanu PF held its district coordinating committee elections across the country, and that Mwonzora’s MDC-T held its controversial extraordinary congress at the height of a devastating Covid-19 wave, means the pandemic has nothing to do with the suspension of by-elections.
It will be recalled that on 31 March 2020, which marked the onset of the Covd-19 lockdown, two dubious rulings were handed down: one was a judgment by the Supreme Court ordering the MDC-T to hold an extraordinary congress to elect Morgan Tsvangirai’s successor on the basis of the party’s 2014 structures; the other was a judgment by the Constitutional Court invalidating the Constitution of Zimbabwe Amendment (No.1) Act, 2017 on the basis that it was enacted unconstitutionally because the Senate vote for it did not meet the required two-thirds majority but, in his judgment, Chief Justice Luke Malaba suspended the invalidation for 180 days from the date of his judgment to allow Senate to rectify the invalidity by correcting its vote.
At Mnangagwa’s behest, these two judgments have toxified politics in Zimbabwe and corrupted the conduct of the three branches of the state, namely, the executive, the legislature and judiciary in ways that have deformed the jurisprudential basis, institutional capacity and governance integrity of the state as a body politic.
Whereas the Supreme Court judgment of 31 March 2020 has been abused for an unprecedented orgy of recalls of MDC Alliance MPs and councillors by people with no legal authority to make the recalls, Malaba’s Constitutional Court judgment has triggered a Parliament in which Zanu PF does not have a two-thirds majority in the National Assembly, and not even in the Senate, to illegally enforce the unlawful recalls in order to secure the required two-thirds majority via Douglas Mwonzora’s MDC-T, the beneficiary of the recalls. This is the unpacked question of the moment.
Whereas there has been lots of noisy chatter about by-elections, it is instructive to note that Mwonzora has, in fact, recalled only 12 from a total of 63 directly elected MDC-A constituency MPs.
On the other hand, he has recalled and replaced proportional representation MPs: nine on the women’s quota in the National Assembly and eight in the senate.
The Mwonzora strategy, which is driven by Owen Ncube and Isaac Moyo, minister of State Security and Central Intelligence Organisation (CIO) Director-General respectively, away from Zanu PF’s now redundant commissariat department, is to takeover Senate because its entire membership is elected on the proportional representation slate based on the July 2018 constituency election results. In other words, there are no by-elections in the Senate.
This means that, in formal terms, the Senate has gone to Zanu PF, which now has a two-thirds majority, but only through Mwonzora.
That is why, save for the unpredictable Morgen Komichi, Mwonzora and his senators voted for the Constitution of Zimbabwe Amendment (No.1) Bill, 2017 despite the fact that it was illegally before the senate in violation not only of Parliament’s Standing Orders but also section 147 of the constitution which stipulates that:
On the dissolution of parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.
The Constitution of Zimbabwe Amendment (No.1) Bill, 2016 was introduced in the eighth parliament in 2016 and it died with that.
There is no constitutional way of resurrecting it in the current ninth parliament by bringing it via a motion in Senate for the purposes of a third reading, without starting afresh from scratch.
But Mwonzora’s lot in the Senate ignored this because they have become an extension of Zanu PF; without being subjected to a by-election.
While Mwonzora has found it relatively easy to formally if not symbolically takeover MDC Alliance MPs in the senate, as well as the women’s quota MPs in the National Assembly, with the help of the CIO, he has a tricky and uphill task in the National Assembly, when it comes to MDC-A’s directly elected constituency MPs.
This is because a recall of a directly elected MP must be followed by a by-election and Mwonzora and the CIO know only too well that they cannot and will not win any by-election to fill a vacancy created by a recall of an MDC Alliance MP. Never. No chance in heaven.
Out of the realisation of the danger they face in recalling the MDC Alliance’s directly elected constituency MPs, Mwonzora and the CIO have adopted a bifurcated strategy.
First, they have targeted only a dozen directly elected MDC Alliance MPs.
The targeted 12 are seen as Nelson Chamisa’s radicals and they were recalled for propaganda purposes of faking toughness to ostensibly demonstrate to the others what could happen to them.
Second, Mwonzora and the CIO targeted only 12 MPs out of 63 because they in fact do not want to have by-elections at all; all what the CIO wanted is for Zanu PF to gain a two-thirds majority in Parliament through Mwonzora, to pass unpopular amendments to the constitution of Zimbabwe, to enable Chief Justice Malaba to remain in office and to give Mnangagwa imperial executive powers.
In the circumstances, what are the stakes for the MDC Alliance?
It is nonsensical for Mwonzora to claim that his MDC-T owns the MDC Alliance name and that, therefore, they will contest by-elections as MDC Alliance. But this nonsense could be upheld by a captured judge or court.
The fact of the matter is that the MDC-T cannot, as a party, have two names or two symbols.
As a name, the MDC Alliance is not the property of the MDC-T but of a conglomeration of parties that signed an electoral pact as “a composite political cooperation agreement” and agreed to use the name “MDC Alliance ” together as one.
These parties are MDC represented by Welshman Ncube; PDP represented by Tendai Biti; TZ represented by Jacob Ngarivhume; ZimPF represented by Agrippa Mutambara; MCD represented by Mathias Guchuchu and Zanu-Ndonga, represented by Denford Musiyarira.
The time has come for these parties and their leaders to stand up to Mwonzora’s MDC-T and put a stop to the CIO pretence that the MDC-T is also the MDC Alliance.
If the other parties do not stand up to Mwonzora on this, they too will be seen as extensions of Zanu PF.
Even so, and anyhow, it is also a fact that as a name, the MDC Alliance is not inclusive enough beyond the pre-2018 election scenario.
For all intents and purposes, the name represents a re-unification of a divided house that once stood as one.
Clearly, some thought should be given to the need to forge a true national alliance, a truly broad-based coalition of progressive forces across the political divide, based on the Citizen’s Convergence for Change Initiative.
A dangerous trap for the MDC Alliance to watch out for is inherent to the fact that the MDC Alliance name is being contested in the courts and in Parliament. Because of that, and without giving up the name, the MDC Alliance leadership should find a robust and dynamic strategy for contesting by-elections, should they be held.
As already intimated, by-elections for constituency MPs must be contested. Mwonzora and his CIO cabal must not be given a free pass. Under what name, then, should the MDC Alliance contest the by-elections.
Rationally, and strategically, given the dynamics at play the MDC Alliance should not contest any by-election as a party whether under the MDC-A name or under any other name.
Doing so would fall into the dirty hands of Mwonzora and his CIO handlers.
The recalled constituency MPs, or any other MDC Alliance candidate, should contest as MDC Alliance independents, of course with the support of the MDC Alliance, whose leadership should campaign for the independents.
Their logo, as MDC Alliance independents, can have the Chamisa portrait.
What is important is to avoid contesting the by-elections as the MDC Alliance or as a rebranded party under a new name.
The reason Mwonzora and the CIO are threatening that the MDC-T will contest the by-elections as MDC Alliance is because they want to force Chamisa and the MDC-A to rebrand and assume a new name, so that they will end up in Parliament with only 12 or 18 MPs under the new name.
That would make the party with a new name the third and smallest party in parliament.
Any rebranding coming out of the Citizens’ Convergence for Change should not, under any circumstance, be for purposes of by-elections but should be forward looking, towards the next general election.
The tables below show how and why Zanu PF does not have a two-thirds majority in either house of Parliament and why it desperately needs Mwonzora’s support..
Whereas right now Mwonzora and the CIO ferrets are turning on the heat against the directly elected MDC Alliance MPs in the National Assembly, forcing them to adopt a situational strategy that makes them MDC-T by day and MDC Alliance by night; the fact of the matter is that as the clock tick-tocks closer to 2023, all rational opposition MPs in Parliament will ditch Mwonzora and his Zanu PF-linked MDC-T.
They will just flock away from Mwonzora.
About this, there is no doubt.
Once the moment of reckoning comes for the sitting MPs, to become election candidates for 2023, Mwonzora and his MDC-T will become a losing proposition just like Thokozani Khupe and her MDC-T were ahead of the 2018 general election.
This is as certain as the fact that the sun will rise tomorrow.
As things stand now, Mwonzora is the Zanu PF-created leader of the opposition in Parliament, while Nelson Chamisa is the people’s chosen leader of the opposition in Zimbabwe, in a position to form an alternative government.
It is this reality that, going forward, should shape the MDC Alliance’s strategic thinking and praxis.
Meanwhile, and on the back of the foregoing, what are the far-reaching implications of the passage of Constitution of Zimbabwe (No.1) Bill?
Firstly, it is now clear that, although the manifest pre-Covid-19 purpose of the Supreme Court judgment was to destabilise the MDC Alliance by irrationally forcing it to restructure its leadership by holding an emergency congress in 2020 using 2014 structures to choose a successor to Morgan Tsvangirai; Mnangagwa has taken advantage of Covid-19 and used the Supreme Court judgment to restructure parliament through Mwonzora’s recalls of MDC Alliance MPs, after Zanu PF lost its 2018 two-thirds majority after the onset of Covid-19.
Secondly, the recalls have damaged and destabilised the MDC Alliance by foisting on it an irrational restructuring exercise in 2020, based on non-existent 2014 structures; they have pushed the MDC Alliance back from its huge electoral gains from the 2018 presidential election; and they have restructured parliament for Zanu PF to regain a two-thirds majority through the backdoor to pass unpopular amendments to the constitution; with the consequence of rendering illegitimate, parliament and its enactments.
The crisis of legitimacy that was surrounding Mnangagwa and Chief Justice Luke Malaba, after the 2018 general election, has now also sucked in Parliament and put on the spotlight National Assembly Speaker Jacob Mudenda and Senate President Mabel Chinomona. As such, the recalls of MDC Alliance MPs have had as dramatic impact on restructuring the MDC Alliance as they have had on restructuring Parliament.
Thirdly, it is notable that the entirety of Constitution of Zimbabwe (No.1), specifically and only made possible by Mwonzora and his MDC-T, is retrogressive; and not only push back the gains from the new 2013 constitution; but also puts, yet again and as a major election issue for 2023, the case for the need for a new and democratic constitution whose entire provisions are so entrenched that they can only be amended after referendum supported by two thirds of the voters, if approved by parliament.
Fourthly, Mwonzora’s claim that Constitution of Zimbabwe Amendment (No.1) Bill has enhanced devolution is patently false. The mere fact that devolution as not been implemented since 2013; and specifically, the fact that the provincial councils elected in 2013 and 2018 did not take their seats, shows beyond any doubt that Zanu PF does not support devolution and cannot enhance it through any amendment to the constitution.
It is an outrageous contradiction in terms that a party opposed to devolution can enhance what it is deeply opposed to. Zanu PF has used the Bill to block the accountability of central government to the people in their localities in the provinces by entrenching its power and authority, while also preventing the equitable sharing and distribution of natural and financial resources between and among the country’s regions.
Fifthly, Mwonzora’s claim that Constitution of Zimbabwe Amendment (No.1) Bill is progressive because it has provisions for women and youth quotas in Parliament and councils is absurd, and even corrupt.
The quotas are not an expression of representative democracy, nor are they about the gender empowerment of women as a social class or the empowerment of the youth as a demographic group; rather, the quotas are about entrenching political patronage by giving party bigwigs more power to choose some pliable women and youth who are put on the party lists, under the proportional representation system, with the ever-present threat that anyone on the party list can be removed and replaced anytime by dint of the whims and caprices of the party bigwigs. To call such a system progressive, as Mwonzora is doing, is bizarre.
Sixthly, it is important to underscore that, although Constitution of Zimbabwe Amendment (No.1) Bill, is omnibus and sweeping in scope, its main beneficiaries are Malaba, who is desperate to remain in office beyond 15 May 2021 when he should retire by operation of law after reaching the age limit of 70, and Mnangagwa who wants Malaba to be available as Chief Justice to do in the 2023 presidential election what he did for him in the 2018 presidential election when he covered up a blatant and brazen theft of the poll by Zec.
All told, the passage of Constitution of Zimbabwe Amendment (No.1) Bill has exposed the fiction that Mnangagwa’s regime is a Second Republic and a new dispensation, instead, the Bill has confirmed the regime as a First Republic 2.0.
*About the writer: Moyo is a former Zimbabwean Member of Parliament, cabinet minister, and academic.
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