Copac constitution has failed to deliver free elections and the scramble is on to justify the failure!

Everyone is aware that the new Copac constitution passed in the March 2013 referendum failed to deliver free, fair and credible elections in July 2013, which was its first acid test. This happened despite the repeated assurances by Morgan Tsvangirai, Tendai Biti, Welshman Ncube, David Coltart, all the other MDC leaders and almost all the country’s civic organisations that the new constitution would deliver free and fair elections.

Ever since the rigged elections the nation has since learnt that there are lot more other freedoms and rights the new constitution is failing to deliver beside free and fair elections.

There has been a scramble to again reassure the nation that the Copac constitution is as solid as the rock of Gibraltar. One of those to join in the scramble is Dewa Mavhinga in his piece “Why respect for separation of powers principle is vital in Zimbabwe”, Bulawayo 24 opinion. 

“There is clearer separation of powers and roles between the executive and the judiciary. Section 164 of the Constitution guarantees the independence of the judiciary to prevent interference with its functions by the other two arms of government. It provides that the courts are independent and are subject only to the constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice,” he explained.

“Further, it provides that the independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts.”

Even he could not deny that want should happen in theory was one thing and totally at odds with what was happen on the ground.

“For President Robert Mugabe to claim, as reported, that the courts do not have jurisdiction over Zanu PF disputes and that he would want to see which judge would preside over the case brought by former Zanu PF secretary for administration, Didymus Mutasa, constitutes a violation of the principle of separation of powers,” admitted Dewa.

“It amounts to interference with the judiciary and could also amount to intimidation of the judiciary given the president's position as head of the executive.”

In other words after all his wittering about all the constitutional provisions in the Copac constitution guaranteeing the independence of the judiciary and separation of its powers from those of the executive and legislature Dewa has come full circle and admitted that in Zimbabwe the executive has dictatorial powers over the judiciary. All the talk of the new constitution guaranteeing an independent judiciary is therefore a myth. 

Dewa Mavhinga did not offer any explanation why there was this heaven and hell difference between the independent judiciary stipulated in the new constitution and the subservient one on the ground. No doubt he thought his reprimand of Mugabe to stop interfering and intimidating the judiciary was enough to put everything right. Others, less naïve than Dewa, have gone further and argued the constitution on its own was inadequate those in power must respect the constitution – “constitutionalism” as Tendai Biti put it.

This constitutionalism argument is a nonsense because is a vicious circle that is offering us a solution that will only work if we assume those in power a God fearing and just leaders which we know we do not have and hence the reason we wanted a democratic constitution to end their abuse of power and lawlessness. The Copac constitution has failed to deliver free and fair elections and all the individual freedoms and rights not because no constitution can but because it is weak and feeble to do so. 

It is nonsense that the Copac constitution guarantees the independence of the judiciary, for example; it does no such thing. It is the State President alone who appoints, fixes their remuneration packages and fires all the senior members of the judiciary, Police, Army, CIO, ZEC and all the other State Institutions. Although parliament can summon these officials to appear before the House the legislature has no power to force them to answer all the questions much less have them dismissed even if there is overwhelming evidence of incompetent, corruption, blatant political bias, etc. Of course that makes the judges, Police Commissioner, etc. beholden to the State President and, not surprisingly, most of these positions are filled with Zanu PF party loyalists.  

The new constitution calls for judges, Police, etc. to carry out their duties “without fear or favour”; that is wilfully inadequate to guarantee the independence of these officials.

The only way to guarantee independence of parliament is by ensuring that MPs are democratically accountable to the people, the electorate. The new constitution has failed to guarantee the independence and political impartiality of ZEC, the Police, public media, Army and all the other players involved in the elections, directly, indirectly or should in fact not be involved at all. So Mugabe and his vote rigging cabal decide who gets elected into parliament and who does not and hence the MPs, like the judges, Police, etc. are themselves too beholden to the executive.

The Zimbabwe parliament has been reduced to rubber stamping whatever the Joint Operation Command (JOC); a shadowy Junta including the top brass in the Police, Army, CIO and a select few from the party Zanu PF headed by Mnangagwa and Mugabe; decide. Even during the GNU when MDC had the majority in parliament it was JOC that continued exercise real political power.  JOC has even its own source of funds from the sale of Marage diamonds, as Tendai Biti then Minister of Finance noted but was powerless to stop.  

Of course it is unforgivable that the parties in the GNU wasted five years and $100 million drafting the Copac constitution and now the nation is to pray that those who ruling over us are God fearing and value the rule of law and if they do not – well, excuse my French, we are fcuked! It so happened that Mugabe and his Zanu PF thugs have nothing but contempt for the law and so lo behold we are indeed fcuked!

The only way forward is to come clean and admit the Copac constitution is weak and feeble and not waste time writing volumes of explanations why it would work in utopia. Zimbabwe is not utopia! We must now implement all the democratic reforms agreed in the 2008 GPA and then revise the Copac constitution in line with the reforms and where necessary to beef it up! There is no other way.