Reality check for some GPA creatures by Prof J Moyo

Here is a reality check which some GPA creatures and those who support them in and outside the country are conveniently if not dangerously ignoring in the vain hope that they can fool everyone all the time under the cover of ill-considered, misplaced and misunderstood reforms some of which are manifestly illegal and unconstitutional.

If the noisy call that the forthcoming general election should be held under the ill-fated Copac draft constitution after a referendum is subjected to the test that politics is the art of the possible, then it is now impossible to have a referendum on the Copac draft constitution and - if the referendum endorses the draft - a general election based on a new constitution within the next 11 months during which the general election which is now due must mandatorily be held in terms of the Constitution.
 
There are two important separate but related points about this. The first is that while it might indeed still be physically or practically possible to hold a referendum on a Copac draft constitution within the next 11 months, it is no longer politically desirable or responsible to do so because the country is now in the period during which the constitutional process for the next election must be in full swing. Essentially the sum and substance of this point is that in politics what is possible is not mumbo jumbo about anything and everything some if not most of which is often destructive and therefore not political but rather that the art of what is possible is about what is desirable, what is good or beneficial and what is responsible which includes what is in the public interest or is in the national interest and safeguards the country's national security.

The second point which is related to the first is that if GPA creatures pushing for the holding of a referendum on any Copac draft constitution that might end up being agreed upon by Zanu-PF and the two MDC formations even at this eleventh hour against all odds are able to get their way and a referendum is held and endorses the Copac draft, it would be impossible for the processes, laws and institutions enabled by the new constitution to be enacted and implemented within the constitutionally available time in the next 11 months before the next general election.

In other words the essence of the second point is that it is now practically impossible for the next elections to be held under any new constitution.

If the truth were to be told without fear or favour what we have here is a case of chickens coming home to roost. It is instructive to observe that the political, diplomatic and media forces in and outside the country that are now falling on each other to call for a GPA agreement on a Copac draft constitution that they must be submitted to a referendum and used to conduct the next general election, are the very same forces that have been using Copac to play hide-and-seek games since April 2009 when Copac was formed with a mandate to complete its work in 18 long gone months.

The hard reality now before everyone who cares about what is going on is that in terms of Article VI of the GPA, Copac should have completed its work and the country should have had a new constitution by October 31, 2010 if there was any need for one. While there is no shortage of explanations why that did not happen, the as yet untold story behind the story is that regime change agendas in the MDC and succession interests in Zanu-PF politics intervened through a Machiavellian strategy that targeted President

Mugabe's candidacy in the next general election under the ill-advised presumption that given the off the wall allegations about his age and health that have been taken way too far, the conclusion of the Copac process should be indefinitely delayed to effectively nullify President Mugabe's candidacy by rendering it impractical.

But more than 38 months later since the formation of Copac, which should have completed its work in 18 months from April 2009, that Machiavellian strategy targeting

President Mugabe's candidacy has come to grief and those behind it are beginning to pay heavily. This is because while President Mugabe's candidacy has not been more assured and more secure than it is with the general election constitutionally and therefore mandatorily due within a paltry 11 months, after 38 months of failure it is the fate of the Copac constitution making process and not President's candidacy that now hangs in the balance.

In effect those in and outside the country who all along have been dreaming or imagining that they could use the Copac process to technically knock President Mugabe out as a candidate in the forthcoming general election are suddenly realising that they threw a boomerang at him which is now not only hitting their political ambitions but which is also technically hitting the Copac process itself, never mind whatever draft constitution that process may or may not produce after all is said and done. Copac is out of time to do in 11 months what it has failed to do in 38 months and has lost or squandered time in a manner similar to how energy is lost under the second law of thermodynamics wherein once it is gone it is gone and cannot be retrieved or recycled for reuse.

Specifically the constitutional fact arising from the dispensation of harmonised elections is that the tenure of the current hung Parliament elected on March 29, 2008 expires on June 29, 2013 which will be five years since President Mugabe took his oath of office on June 29, 2008. Zimbabwe's constitutional practice is to hold elections some 90 days before the expiry date of the term of its Parliament and in any case we must constitutionally count at least some 45 days backwards from the expiry date of Parliament's tenure to ensure that there's no period when there's no Parliament. The claim in some quarters that elections could be held some 90 days after the expiry of its term on June 29, 2013 is political fiction.

The only time when Parliament's constitutional tenure can be extended beyond its expiry date is when there's a state of emergency occasioned by a natural disaster or war. Those like Tendai Biti who has strangely suggested an October 2013 election may have in mind an impending natural disaster or war only known to them in advance otherwise their talk is constitutional rubbish.

What this means is that the forthcoming general election must be held by March 31, 2013 and that is nine months from now. To his credit Tsvangirai has admitted as much in public. But the point is that it would be totally mad for anybody to truly and honestly believe that we should or can in nine or 11 months get the GPA parties to agree on a Copac draft constitution, organise the second Stakeholder Conference on that draft, send the draft to Parliament , organise and conduct a referendum on the draft, gazette that draft and send it back to Parliament, forward it to the President for assent, enact and implement the processes, laws and institutions of the new constitution, organise and run the next election on the basis of that new constitution. That scenario is simply no longer an option even with the best of intentions. It cannot happen and will not happen because it must not happen as it would be madness. While a transitional constitution from colonisation to independence or from war to peace can take a relatively short time as illustrated by the Lancaster constitutional process whose negotiations took three months after which elections were held and independence was achieved within an additional three months, the making of a new constitution by a sovereign country such as ours 32 years after its independence is entirely a different thing that cannot be compared to the negotiation for a constitutional transition from colonialism to independence.

The process of making of a new constitution by a sovereign country can be very protracted and so far the African experience is that the process can take some 20 or more years once it begins in earnest as exemplified by the cases of Kenya and Zambia. Even more telling is the fact that, as seen in Kenya, the implementation of a negotiated, agreed and referendum-endorsed constitution requires a minimum of 18 to 24 months before the next election. Anything else would be inherently destabilising and destructive when the making of a new constitution should in fact be the opposite of that by being constructive.

This is a very important point whose self-evident lesson can be easily lost in a politically polarised or charged environment. So to repeat, any new constitution in a sovereign country that has been independent for some 32 years like ours requires a minimum of 18 to 24 months of implementation time before the next election. Anything else is a disaster and there is a plethora of so-called international best practices from across Africa and elsewhere around the world that support this view with Kenya being the most notable example relevant to the Zimbabwean case.

As a matter of fact, constitutional democracies do not ever hold referenda on a new constitution on the eve of a general election. Never ever! Instead such referenda in stable constitutional democracies are held the day after a general election or at some mid-point before the next election to allow the country breathing space beyond constitutional divisions. There are many other good reasons for this practice apart from the obvious.

In the circumstances, it would be unprecedented, irresponsible and very dangerous for our country's stability, national interest and national security to even try to organise and run the next general election which must constitutionally be held within the next 11 months which practically translate as the next eight months should they be unexpectedly be delayed beyond this year.

Even with the foregoing in mind, some might still wonder why Morgan Tsvangirai's MDC and its media, donor and NGO supporters are pushing for elections under a new constitution when they have been at the forefront of wasting the last 38 months of Copac's failed history. This is a legitimate concern and its answer is in a 2006 MDC document entitled "Proposals for the Resolution of the Zimbabwean Crisis" released in May of that year and whose authorship is unmistakably foreign. This telling and therefore must read document is currently being regurgitated with reckless abandon in many of the inhouse MDC T position papers written by the likes of Charles Mangongera and Trevor Maisiri in their simplistic and clueless scenario-building ahead of the forthcoming elections.

The document is in fact a precursor to the GPA such that you read it and you will understand the logic behind the GPA and the so-called reform positions that are currently doing rounds. Under a section entitled "The Political Change Process: A New People Driven Constitution" the foreign authors of the document observed in May 2006 that, "The MDC, on reviewing past developments/events and drawing logical projections to the future, is convinced that a process of negotiations, leading to a New Constitution, and subsequent period of democratic transition, is the only way out. . ." and emphasised that "there has to be a clear method, timeframes and signposts on the road to political transition". Interestingly, the signposts referred to are the same as those contained in the so-called Zimbabwe's roadmap to elections prepared in 2011 by GPA negotiators under President Zuma's discredited facilitation team.

In their inhouse MDC-T position papers on the party's strategies for the forthcoming elections which they say they revealingly expect to be held this year despite their public posturing to the contrary, the likes of Charles Mangongera and Trevor Maisiri specifically refer to the MDC's 2006 proposals and say that the making of a new constitution under Copac is the most important election strategy for the MDC-T because its "adoption would invigorate Zimbabweans into believing that they can change things and be energised to vote Zanu PF out of power in the election that would follow the referendum". The two clearly say that just like in 2000 the referendum on the Copac draft constitution would be "a yellow card" and the general election would be "a red card".

But even more specific is that they highlight the now widely known and published view of the MDC-T that the Copac draft constitution is for the MDC-T a transitional process only for election purposes. The view that is now clear from the MDC-T inhouse position papers on the party's election strategies supported by recent public statements by the likes of Tsvangirai, Nelson Chamisa, Obert Gutu, Jessie Majome and the MDC T's media hacks is that the MDC-T is pushing for a new Copac constitution not as a reform agenda but purely and only as an election strategy. About this Tsvangirai has said "We want to go to elections next year with a new constitution. After winning that election we will make sure the country has a real people driven constitution with all your views". In the same vein Chamisa as the MDC-T's commissar has publicly said the Copac constitution would be "a transitional document but at the appropriate time and opportune moment Zimbabweans would be given an opportunity to write a people driven constitution in a manner that will inspire confidence and legitimacy and that will be at some time in the future".

The fact that the MDC-T views Copac as a transitional process for election purposes is well documented beyond dispute. Unfortunately for the MDC-T, the cat is not only now out of the bag but time has also run out such that with only 11 months to go it is impossible to hold the forthcoming general election under any new constitution. But that cannot be the end of the world because Zimbabwe has an adequate constitution and legal system as recently acknowledged by the UN high commissioner for human rights Navi Pillay.

As GPA guarantors Sadc and the AU, who have been loudly silent about the controversial elections in Egypt that have been held without a constitution, have an obligation to acknowledge Pillay's admission.