Tsvangirai still holding the key but Mugabe has changed the locks

I think I owe Zimbabweans a tribute. They are a humorous lot. It is an ingrained part of our national character, a vital part I would never trade off for anything. We must never lose it. This habit of ours - unique in my view - to laugh at adversity, to laugh or mock our tensions away, is our greatest forte.

The Greeks used to have a whole institution of city drama to achieve what we Zimbabweans do attain without losing a farthing, without those grand, expensive amphitheatres.

Through either fearsome or farcical drama played out as public spectacle, these Greeks enabled citizens to be purged of emotions or tensions which stressful social circumstances would have generated in the course of their living. In the drama, when villains got killed finally, the audience-citizen would feel repaid, albeit vicariously.

That way sins of the work-a-day world would have been atoned for in the fictional world.

When scoundrels came to a farcical end, the real fool who ruled in the everyday world, would have been floored, to universal delight of the citizenry which would feel suitably avenged.

Okay, if this was vicarious, it still gave the wronged citizen the eternal hope that evil never gets away with it, in the final analysis. Comeuppance would visit the baffoon-leader, the cruel leader, the unfair leader, eventually. That way fiction tempered facts of everyday life and the Republic was kept in a healthy balance, cured of perturbations, or the likelihood of them. Through fictional catharsis, the citizen was made more sedate, less impulsive, less restive and thus quiescent and at peace with an unjust Republic.

When Presidential powers are used
The week has been very dramatic, full of big decisions which define the fate of our country for the next half decade, if not beyond. Cabinet passed amendments to the Electoral Act, all to bring it in sync with the new constitution. And our Cabinet, it must always be remembered, draws from the three political parties which were brought together to form the GPA. Before this development, the amendments had been thrashed by negotiators of the three political parties, and had been further thrashed by a committee of Cabinet on legislation.

The ethic of political tripartitism was thus upheld all the way. A day after the Tuesday Cabinet decision, the President invoked his Presidential powers which are in our laws, to turn this decision of Cabinet into an operable law. Yes, there is a law allowing the President to make law, albeit temporarily, in circumstances in which the normal law-making route is untenable, for whatever reason. We have used that route before, most memorably in 2000 following a Supreme Court ruling that ended ZBC monopoly of the airwaves.

The ruling created a legal lacunae which some white woman took advantage of to launch a radio station, Capital Radio, without any licensing process. There was no licensing authority then, indeed no law to deal with the aftermath of the judgment. The Presidential powers had to be used to promulgate temporary regulations which played surrogate law for six months, during which time a proper Bill was prepared and taken to Parliament, all to give us the current Broadcasting Services Act, BSA. Presidential powers are at law temporary, lasting only for six months. They have been used before; there are for use in the governance of the realm.

Frustrating compliance
It must be fairly obvious that the recent constitutional court ruling created a situation virtually analogous to that which obtained in 2000 after the Gubbay ruling. Except the current situation is graver to the extent that it touches on core institutions of governance of this Nation. But the effect of the ruling is comparable. It created a tight time-line within which all processes antecedent to elections had to fall. Everyday has become that crucial, that much of a key determinant between legality and illegality. The normal route for Cabinet-cleared decisions of a legislative nature is Parliament.

Indeed Parliament was in place, is in place. But was it ready to play its part towards a legal outcome? That was the key question for the President. The judgment itself, final though it was, was still being contested by two parties in the GPA, one led by a lawyer, another including a surfeit of lawyers, yet both ignorant of the law and legal procedures.

In spite of all this they still sought to contest the ruling. Not on legal grounds; but contested on political grounds by two parties that don't fancy the inconveniences of polls when they feel they have not had enough of negotiated glory in Government. One of the parties not just dismissed the judgment; it lined up a whole rally of lawyers to plot a way of frustrating, through pseudo-legal processes, compliance with the judgment.

Minutes of that sinister meeting are now in the public domain. And the goal of that meeting went beyond frustrating the judgment; it included traducing the Bench, attacking the only other constitutional arm of State to remain standing after June 29. If you consider that the two MDC formations have sought to extend life of the GPA Executive beyond the life of Parliament which expires on 29 June 2013, this planned attack on the Bench would then have demolished the only other remaining checking arm of the State - the Judiciary - to give us an absolutist GPA triumvirate!

One fatal brag from a diminutive
As if to dispel as doubts about their intentions, Jameson Timba, a minister in Tsvangirai's Office, twitted: "We will negotiate with Zanu-PF to make them see sense and the need to do things properly in terms of realigning the laws (not only the Electoral Act), and ensure a credible voter registration exercise and (voters') roll and all attendant reforms before holding an election . . . if they refuse . . . we will see them in Parliament. Without us they cannot pass any law, including the electoral amendments and as such cannot have a lawful election in terms of the new Constitution.

Democracy means rule by the majority...and we happen to be the majority representatives." It was a fatal brag by the diminutive minister, a real threat to obstruct law-making via Parliament. The President had been forewarned, and thus forearmed himself. There were other corroborating pointers.

The Prime Minister, who had left the country the previous Saturday, was busy cuddling and lisping with his Rhodesians in South Africa, too happy and engrossed to come back in time for the Monday meeting. He only flew into the country after 9.30pm on Monday, making it well nigh impossible to meet the President and Deputy Prime Minister Mutambara, ahead of the crucial Tuesday Cabinet as the three were wont to. It was a well-calculated absence. The President would have been an absolute fool to take the Parliamentary route so fraught with such intentioned dilations.

Indeed, he would have been made to break the constitutional court ruling and then face the music ALONE. So, the MDC formations made the normal law-making route unavailable, in the process justifying the use of Presidential powers.

As it is, that instrument has made it possible for the country to proceed with elections constitutionally, and without undermining a decision of the ultimate court in the land. What shall puzzle historians for all times is why parties with such copious legal minds never foresaw this.

Those dissembling hypocrites
But all this has done much more. It had exposed the MDC formations in a very bad way, exposed them as incorrigible, dissembling hypocrites. How do parties pushing for governance without Parliament suddenly turn around to lament the circumventing of the same Parliament in a lawful way, through the use of Presidential powers?

When is Parliament important, when is it dispensable? Lawfully side-lining it for purposes of fulfilling a court judgment seems more hurtful than governing without it for four full months without any basis for it at law or in courts? And then you have an avalanche of court cases, all of them frivolous and vexatious to the extent that we now know what they are calculated to do.

Firstly, it seems daft in my view to mount actions for the attention of the same court you have derided. Much worse, the Constitutional Court judgment bound Tsvangirai and Ncube, urging both to assist the First Respondent, in this case President Mugabe, to comply. They have not done so; they are not doing so. Their legal actions amount to approaching the same court with dirty hands.

What is more, are they hoping that the same court will convict the President for taking all necessary measures to comply with its own ruling?

It boggles the mind, as also does the Prime Minister's claim that a disagreement between himself and the President amounts to a "constitutional crisis". He is not an arm of Government, merely an officer of it. A junior one at that! A defunct one, too. When the Prime Minister stresses his official title and predicates on it his response to a lawful act, he brings his post and title up for discussion and comment. And he will be reminded, not so politely, that he loosely hangs on transitional clauses and should thus speak with the humility of his tenuous legal status. He is an interlude, a pause, a comma between past acts and future actions.

And commas allow the reader to catch breath; they are not readers of the text itself! He is a fact not of the present and future, but one of a setting constitutional dispensation. There is no need for him to wag his premiership, hoping that makes him fly. It is amazing that it never occurred to him that in celebrating the coming in of the new constitution, he was in fact burying himself together with the ghost of Lancaster! And Mugabe made sure he was interred happily, what with the gift of the pen that signed his death warrant!

Alice in four-year Wonderland
One more point before I bring in the humour. What has not been reckoned with in arguments that seem to want to shore up alibi arguments of the MDC formations is the bare fact that these guys have been enjoying themselves for four good years, forgetting their original reform mission.

Nice houses, nice benzes, nice servants, great fame, greater girlfriends, boyfriends. They had time for sexual legends on the high seas. A real Alice in Wonderland scenario. What is worse, they had three key opportunities to bite the reform cherry. Amendment 18 provided them with an opportunity to effect changes to all the laws that nagged them. And they did, principally Posa, BSA and Aippa.

Next came amendment 19, and again they made changes, which is how we ended up with ZMC and other constitutional bodies. And then next again came the constitution-making exercise.

They made far-reaching inputs to do with a raft of laws, including Defence Act, Aippa, BSA, Posa and many others. Still after four long years, still after three elaborate opportunities, they want more "reforms"! My goodness!

When Parliament goes
There is another argument, one even more devastating. What gave both MDCs and Zanu-PF the right to cobble together the GPA was the fact that they had people in Parliament. This is precisely why Makoni could not be part of the GPA, in spite of the votes his Mavambo collected.

That leg in Parliament is what earned them seats in the GNU. What happens when Parliament expires on 29 June, itself the essence of their participation in the GPA and Inclusive Government?

Indeed, what happens to the GPA without Parliament? In creates a new situation where all parties are equalised by the fact of not having anyone in Parliament, nay, not having a Parliament at all!

That means all parties and all individuals with political goals merit a place on the table which decides the post-29 June scenario! To date we have 28 parties. Why use an-about-to-expire GPA to browbeat the future?

When the lock changes
Back to our humour. I have been following the debate on the Internet, furious debate following dramatic events of the week.

First came the brag from the Prime Minister that he wields the keys to elections. One response was devastatingly cryptic: "True, he has the keys, but Mugabe has changed the lock!". A related one, following the promulgation of electoral amendments under Presidential powers: "O, mamuona mudhara uya! Watiza negumbeze vamwe varere! Hanzi tine makiyi, tine makiyi! Emuhozi?"

Going to war
Some MDC supporters or sympathisers felt so strongly about the whole matter, they would even go to war. Here is one, and the conversation he triggered: "Tsanos: vana kuhondo, garo tumira vana kuhondo. Hona muchadura. Another African Syria. Tapanduka isu!

PG Madziwa: Uchazoona kuti wakapanduka wega wabatwabatwa nevakomana!"

Boosting coffin business
Not to be undone, Tsanos comes back: "Nyika yakauya nepfuti if u want it u have to fight vanaNcube. Blood has to be spilled, maiti zvichapera nemandevere kikiki. These goblins are blood thirsty. Hondo varume. Gore rino isu vemacoffin tichaita mari!" Then Nkoko365 response: "I don't think mass graves require coffins AND nGUBE thinks his son's tezvara ZUMA is on his side.

"I don't think so AND papfuti haulume - we are waiting for you and have been since 1999."

The last ones to let you down

Talking about coffins, it reminded me of some indigenous business in the Kopje before the area was rehabilitated. The business traded in coffins and other accoutrements of death. Its trade name was GRAVE CONCERN.

Its punchline was really a blow to the groin: "WE ARE THE LAST ONES TO LET YOU DOWN!" Well, Mister Prime Minister, more campaigning, less complaining. Then indeed we will be the last ones to let you down, come 31 July, 2013.

When laws follow politics
On a more serious note, this idea of using aliens to mount legal action in our courts on polling processes is really dangerous. It creates ground for xenophobia. Here we are, allowing aliens to vote with us for the first time after a long while.

That is a very generous gesture. Now, they requite us by allowing themselves to be used to hold our defining process to ransom? That is not very friendly. If you have the power ( as an alien) to seek to stop national processes, what stops you from wanting to govern us? Remember Ivory Coast.

Yet another thought from a friend I usually parley with before writing. The trouble with our situation, he argued, is that the GPA dispensation has inaugurated a very bad habit and sensibility in our nation where laws follow politics. To some people, GPA, itself a political agreement, has now acquired the aura of the ten commandments: all national laws must kowtow to it, and kowtow to all those who authored it! That is why we can't or shouldn't obey court rulings! Food for thought. Icho!
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Nathaniel Manheru can be contacted at nathaniel.manheru@zimpapers.co.zw