21 March 2013<
The following interview contains some useful insights into the seemingly complex or confusing situation Zimbabwe finds itself in following a landslide Yes vote in a Constitutional Referendum and an almost immediate upsurge in incidents of political violence, arrests and intimidation of human rights lawyers, judges and anti-graft officials.
VG: My guest on the program is MDC President Professor Welshman Ncube. Welcome on the program Professor Ncube.
WN: Thank you
VG: Let’s start with your take on the recent arrest of Human Rights Lawyer Beatrice Mthetwa and officials from the Prime Ministers’ office.
WN: We are seeing a deterioration of the respect basically for the freedoms and rights of people. Clearly you have had the onslaught on NGO’s, you now have lawyers who are trying to represent their clients being arrested. You are having a general upsurge of violence, you are seeing a return to the days of general intolerance in the country. It’s difficult to see why anyone would think that there is anything to gain by creating a climate which is not conducive to a free and fair election a few months before elections.
VG: In the case of Mthetwa for example, there is a high court order that the police should release her and basically this has not happened, so with what you know as a leader in government what is happening here. Where are the instructions coming from?
WN: Clearly there is either what you might call a faction or a section of ZANU PF, which is in charge of the security apparatus. It is obvious to anyone that the inclusive government as a collective has never been in charge of the security apparatus of the state, even if one of those ministries is co-ministered. It’s clear that the security apparatus are under control of persons in ZANU PF, clearly the two MDC formations have never had any control.
It’s also not a coincidence that the events have coincided with the attempts by the anti-corruption commission to exercise the authority and investigate whether or not there is corruption in some of the transactions which you have seen around indigenisation and related matters. And clearly you now have a systematic attack on the anti-corruption commission, there is clearly an attempt to instil fear amongst the staff members of that commission and also you still see amongst the commissioners themselves. And all of those things I think are connected and one hopes that this is not the spilling out of some of the factional fights which are happening within ZANU PF.
VG: The PM’s officials are being accused of impersonating police officers to gather information about corruption and criminal activities by senior government people and some of them have been mentioned in the Herald as being local government Minister Ignatius Chombo for example, Police
Commissioner Augustine Chihuri, attorney general Johannes Tomana and others. What do you make of these names and also is it a crime that you would have some sections, who would be gathering such documents, is that a crime?
WN: What we can comment about those cases is limited by the laws of the country regulating the matters which are being sub-judice, which are pending in court. Whatever is said, it must always be understood that I can only say so much not that much because of those rules. What I can say is that of course it’s not an offence in itself to gather information as long as the gathering of that information is not done by unlawful means. We simply don’t have enough details to comment meaningfully.
VG: What about some of the names and these names appeared in the state controlled newspaper saying that these MDC officials were investigating these senior government people? Let’s say that these MDC officials were indeed investigating people like the attorney general or the state prosecutor. Is it not worrying that it’s the same people who are then presiding over this case, isn’t there a conflict of interest there?
WN: Of course there would be a conflict of interest, but at this stage the investigation of course would be done by police, unless the police officer doing the investigation has a conflict of interest. Of course, if the attorney general’s name features he would have a conflict of interest to the extent that he would then be required to make a decision as to whether or not to prosecute.
VG: Home affairs Minister Theresa Makone believes that the violence in this coming election is going to be worse than what happened in 2008, do you agree?
WN: I do not want to speculate about whether it would be worse or what, all I can say is that we have moved into a phase which is exceeding worrying. The behaviour of the police is certainly worrying, the behaviour of ZANU PF in the last few weeks is exceedingly worrying. Clearly the atmosphere which is being conjured up, which is being created is not an atmosphere which will instil any confidence in anyone that we are about to create an environment for free and fair elections. It is clear that if the current situation continues, that if the current situation is worsened you will not have a free and fair election.
VG: So what are you doing as the MDC formations to ensure that we don’t have a repeat of 2008?
WN: What needs to be done cannot be done by the MDC formations, or by political parties. It is the responsibility of government, it is the responsibility of the inclusive government, the collective that is called the cabinet. I know that the last two cabinet meetings has been devoted almost entirely to addressing this deteriorating situation and I have no doubt that in the next meeting and the meeting after that, as long as the situation is not being improved, we will continue to raise these matters within cabinet and we will continue to insist that those who have control over the security apparatus of the state allows the security people to police fairly, impartially and without fear and favour, which is not happening at the present moment.
Of course as a party because the inclusive government is guaranteed or the GPA is guaranteed by SADC, we engaged the executive secretary of SADC on this, we engaged the head of the SADC mission to the referendum about some of these worrying issues. Clearly, therefore, we will be insisting that SADC as the guarantor of the GPA, as the institution which guarantees that we will have a transition which will result in a free and fair election should be seen to be getting ceased of the matter and the necessary action.
VG: But Professor Ncube f you are accusing ZANU PF and the police isn’t it obvious that it will have to be up to the MDC formations in government to do something?
WN: The MDC formations as MDC as parties have no power to compel the police to do anything, it is the government as a collective, it is the institution of government which has the power to compel. We have been acting within the institution of government as a collective. That is the distinction I am seeking to draw.
VG: I’ll come back to this issue but let me go to the issue of the referendum. First of all what did you make of the referendum results?
WN: It is very good that the turnout for the referendum was what it was, over 3 million voters. We have not had any election where people have been required to vote since a very very long time. It was important that so many people turned up. Basically, this is a resounding endorsement of the constitution. Remember that in 2000 the constitution was rejected by less than a million voters, now it’s been endorsed by 3 times the number of those who rejected the draft in 2000. I think that is significant, it means that the people of Zimbabwe have engaged, the people of Zimbabwe believe that this constitution, imperfect as it might be in some cases, contain the fundamental core values they want to see in a constitution.
In my view, we can now say for the first time we are about to enter a new period, a new era in the history of this country where we can have a constitution where we can truly say this constitution has been made by the people. The people have endorsed it in overwhelming numbers.
VG: Some cynics say that ZEC has a history of rigging and therefore what is there to show that the figures have not been inflated?
WN: We were all observing this election, we were all at the polling stations, we have all the figures in the polling stations, the final outcome from the people who represented us at the polling stations. If you add them, indeed even if you average them, it’s clear that is enough. And in any event, people cannot just make wild allegations, it is not right, there is simply no evidence whatsoever that the figures were manipulated by anyone.
VG: I guess, some of the people were saying this because it had been widely reported before the results were announced that there was a very low voter turnout and that the queues were much shorter than before. They felt that the results did not reflect what was happening on the ground.
WN: Violet, the problem we have is that there were people who were dismissing the referendum in the media, people in civil society dismissing the referendum because they themselves have substituted themselves for the people. The moment you have a media which thinks that it speaks for the people, that the opinions that it holds are the opinions of the people you have a problem. The media, civil society must reflect, must report that which is in society not seek to impose their opinions on society.
VG: But Professor Ncube, sorry for interrupting . I think it’s unfair to say that it was the media that has been exaggerating this issue because some of the news clips, the video clips showed short queues and of course in some areas there were long queues.
WN: Yes, If you get to a polling station for 10 minutes, you take a picture, you make a conclusion, it is you that is making that conclusion. That one picture cannot speak for what has happened from 7am to 7pm. That is the point. In any event, let us not forget that not like any of the other elections, in the previous elections queues will develop because the time it took to serve 1 person would be that much longer because it would be (linked) to a ballot using a voters roll. And here all you did was go in produce your ID, get your name written down, and get given one ballot you vote you get out which meant that people could move continuously without taking a significant amount of time.
VG: Figures in Harare were very high, I think Harare had something like 515 thousand people who voted, while Bulawayo (the second largest city in Zimbabwe) had the lowest and also the Matabeleland provinces considered to be one of your strongholds also had low voter turnout, what could have attributed to these low figures in Bulawayo and Matabeleland?
WN: That in itself Violet is also a fiction, first we have no stronghold anywhere in Matabeleland, we are working throughout the country, we are working to win votes in every corner of Zimbabwe.
Yes if you look at the number of registered voters in Harare, there are over 600,000 and some 500,000 people turned out to vote. So that a large number but let us always remember that Harare is 3 times, 4 times bigger than Bulawayo in terms of its population, in terms of registered voters. Look at the census for instance, if you go by the census, there are over 2 million people who reside in Harare. Of course some of those 2 million are below 18 years. There are 600,000 people who reside in Bulawayo. So you will expect that if you take 600,000 and over 2 million, you will say the people who are in Bulawayo are less than a third of the people who are in Harare. So those figures reflect the population, Even if you go to the registered voters, if you look at the registered voters in Harare there are over 600,000, you look at the registered voters in Bulawayo, there are just over 200,000. So, it must therefore be taken whatever the turnout, you do not compare and say 500,000 in Harare, 120,000 or 130,000 in Bulawayo, therefore in comparative terms is lower. It must be in comparative terms to the population, if you look at the percentage, if you calculate by percentage. The percentage turnout in Harare, if you use for instance the census, you will see that the Harare turnout was about 25%, the Bulawayo turnout is about 20%. So those are not much differences and people should be scientific rather than make conclusions on the basis of superficial appreciation.
VG: You said the Matabeleland Provinces are not your strongholds but the reason I was saying that is based on the number of seats you got in the last elections.
WN: That is correct and that is 2008, Violet, that is 2008, that election is over.
VG: So that’s why I said that these areas are considered to be your stronghold, and if that’s the case what can you say about the voting patterns in these provinces and are they a reflection of how Zimbabweans will vote?
WN: This was a referendum, where everyone who had an ID was voting. The next election will be a general election where you vote in terms of registered voters. Clearly, the numbers in the Matabeleland will always be lower, because the population whether you go by the numbers of voters or by the census, is relatively lower than the population you will find in Mashonaland.
We attach no significance to that, because at the end of the day anyone who wants to win an election, must win an election on the basis of a national vote, and for us whatever turnout we have, we must be able to win sufficient numbers of votes throughout the country for us to be able to win the election.
VG: The National Constitutional Assembly Chairman Lovemore Madhuku says that the referendum results is illegitimate because 95% of the yes votes had not seen, or read the constitution. What can you say about this?
WN: Look Violet, a democratic process has votes. By nature, even an election, you are never going to go and ask each voter as to why they voted this party, and that’s not how democracy works. You work on the assumption that the voter has made a choice, whether it is a subjective choice, whether it is an irrational choice doesn’t matter. You can go to a general election and are convinced that people should not vote for party A, but if the majority go and vote for party A, however irrational it may appear to you it does not render the outcome illegitimate.
Similarly, a person does not have to know the entire constitution for them to make up their mind as to whether they are voting yes or no. In any event it is impossible, even if you took the best lawyers, they would not know even half the constitution from the top of their head even if they read it.
Someone will go and vote and say whatever else is in this constitution, I am going to vote because this constitution now for the first time says a President can serve two terms. Someone will say it doesn’t matter whatever else is in this constitution I will vote because this constitution has devolution. Someone will say I am a woman for the first time in political representation we have a constitution which will ensure that the senate of Zimbabwe will have 50% women and so forth and so on.
Similarly, those who voted no were entitled to say it doesn’t matter what the improvements are because there’s still that thing I hate it so much I will reject this constitution. That is how it works.
VG: How democratic is this process though if as the NCA says that many people voted yes because they were following orders from political leaders to do so?
WN: I don’t think there is a single political party which issued an order. What I know is that the political parties appealed to their members and said for reason A, B, C, D, we think that you should go and vote yes.
VG: You have all said that this new constitution is better than the Lancaster House constitution, but your critics say our problem has never been about the constitution, but about people who abuse their power. What will this constitution do that the previous one didn’t do?
WN: I disagree with that proposition. The problem has been at the very least been two fold. You have had a problem with a constitution which was so permissive in so many respects. In the things we have mentioned, an unlimited term of office, a bill of rights which was wishy washy, unequal gender representation, no devolution of power to communities. There were a lot of things which were wrong with that constitution which we have now sort to correct.
In addition to that, it is obvious that historically in this country the political leadership acted inside and outside of the law. You actually had numerable continuities between Rhodesia and Zimbabwe. And you were just talking about it, when you disobey a court order saying release Beatrice Mthetwa you are acting outside the law. When you arrest people without cause, you are acting outside the law. When you authorise police to act violently or not to arrest criminals or in fact arrest complainants, you are acting extra-legal. So all of those things are part of the problem. That the law can say one thing, if those who are able to command the coercive apparatus of the state, the army, the police are not law abiding themselves. You will have had a problem regardless of what the constitution says, secondly.
Thirdly, you also imply that people must support the constitution because it is better than Lancaster House. In my respectful view, the constitution is actually a damn good constitution. People become apologetic about this constitution because it is a constitution made or negotiated in some respects because it is a constitution in which ZANU PF participated where many people would rather not see ZANU PF there.
But if you objectively read this constitution from beginning to end, and I taught comparative constitutions in my other life. I can say without hesitation that this constitution is as good as any that you can get anywhere in the world. It is actually a very good constitution by any standards.
The bill of rights we have is not any worse in fact better than the South African Bill of Rights. The representation is better than anywhere else you will get in Africa. The provisions of devolution, yes they do not go as far people would have wanted but there are far better than you will find anywhere else in the world. And so forth and so on I could go on. The citizenship, Zimbabweans who were abroad, Zimbabweans by birth who were being denied their birth right, they birth right has been restored to them.
VG: But if we go back to your previous point, how will this constitution stop people acting inside and outside the law as you said?
WN; There is no constitution, there is no law which has ever stopped anyone from acting outside the law. The constitution is never self-executing, it’s a document there. It’s a document sitting in a drawer in an office. It does not stop anyone. The constitution will give you an injunction, you shall not do this. Its individuals who act contrary to the constitution. What is necessary is that we as a people, all parties start punishing those in elections and elsewhere, those who actually opt out of legalities. We are the ones who create constitutionalism, it is not politicians who create constitutionalism.
VG: So Professor, isn’t that the issue, that your colleagues in government should be working on right now because some people may say it’s a waste of time working on a constitution when we know that at the end of the day, it is not the problem in Zimbabwe, but the problem is people who abuse the law especially as we go to elections?
WN: Not true Violet, it’s not either or, it’s never either or. The constitution is absolutely important because it sets the standard. If we have not set a proper standard, then you can’t hold anyone to account to that standard because it doesn’t exist. You can only serve for two five year terms and not more and so forth and so on whatever the rule is. So you must set the standard.
It is wrong for anyone to say it is unimportant to set the standard. Because you then have no yard stick against which to judge those who are doing wrong things. So let’s do things one after the other in sequence.
VG: But how are you going to hold those people accountable if they are still able to control the system.
WN: Violet, at the end of the day, it is up to the people as a collective, it is up to the electorate to set the standard. There is no other way of setting a standard against politicians other than to ensure that those who transgress, those who violate that standard, come election time, you as a people you vote them out of power. If you don’t do that then they will continue to believe they can opt out of the law. They can act extra-legal and there are no consequences. That is the only way, there is no other, it is the people and their collective voice that ensure that the constitution or the standard that they have set by voting for this constitution in a referendum is respected by the political leadership.
VG: But if one of you wins for example in the next election what stops President Mugabe from refusing to hand over power like he did before?
WN: if anyone ever thought that a constitution or a rule stops anyone, it never does. It is the societal, the political consequences of doing that, that stops a person from doing something, it is not a constitution.
VG: I’m not talking about the constitution right now and I’m asking what would happen if we have elections in the next few months and we have a repeat of what happened in the last election?
WN: If you want my view, my opinion for what it is worth Violet. The circumstances have changed so fundamentally, nationally, internationally, regionally that it would not be tenable, it would not be sustainable for anyone to lose an election and say I have lost but I stay in power. We are in the field of conjecture now, but my own view is that the constellation of forces, the consequences that will accrue nationally and internationally are such that if anyone attempted doing that theirs would be a very short lived coup.
VG: But what consequences are there, because as you mentioned earlier on in this interview? You said the situation is very worrying and you mentioned that ZANU PF and the police are continuing to abuse their power to intimidate and harass members of the civil society and opponents. So far they seem to be getting away with it, so what makes you think the situation will change come elections?
WN: Violet, government can only survive because it has internal and external recognition. And I am putting it as bluntly as I can, anyone who rejects the will of the people, if that will has been expressed and formally recognised will not have sufficient internal and external recognition. You will not have that legitimacy to run that government. I cannot take it further than that.
VG: We will wait to see that because its reported that the Americans and those in Europe are now adopting a non-partisan approach and that the view that the situation has really changed as you said and that they now view the MDC formations as incredibly weak resulting in these countries now willing to reengage with ZANU PF and improve relations with President Mugabe’s party.
WN: Violet, I am one of those who has always refused to be the spokesperson of any of the countries. All I know is what I have said, that in regard to the situation in Zimbabwe, the internal and external legitimacy that is required will not allow a person that has lost an election to declare that they are not going to relinquish power when the figures show that they have lost an election. I will not speak for those countries, I can only comment to the extent that you insinuate, in fact expressly say, that the MDC formations are weak. I do not believe that that is a true assessment, as far as I know, the MDC formations are strong, they have done a lot of work on the ground. We certainly have done that and we are a lot stronger than we were in 2008. We are a lot more strategic, we are a lot more informed and are much much better, much stronger.
VG: Do you agree that the MDC’s stand a stronger chance of winning the next elections if the 2 formations reunited?
WN: I refuse completely Violet to discuss red herrings. The main thrust of the party that I led is to organise mobilise and ensure that we win the next elections, and I refuse to discuss red herrings.
VG: Can you briefly tell us what happens now that the referendum because there are conflicting reports about what the next steps are? With the Minister of Justice saying that Parliaments term of office in March but Constitutional and Parliamentary Affairs Minister Eric Matinenga says June 29.
WN: You know the tragedy of this country, Violet, is that even now we can be arguing nonsensical positions about something which is in black and white in the constitution of Zimbabwe, because ZANU PF has mastered the art of deceiving people in the media. Indeed that you have the media writing the nonsense that I have seen. Robert Mugabe was sworn in as President on the 29th of June in 2008. That’s when he was sworn in. The constitution says that the life of Parliament starts to run from that date when the President was sworn in. Therefore this Parliament is for 5 years which starts from June 29, 2008 to June 29, 2013.
The constitution goes further to say if Parliament is not dissolved sooner than 29 June, it shall automatically stand dissolved on 29 June 2013. It goes further in black and white to say an election must then be held no later than 90 days from the date of dissolution of Parliament. In other words, an election must then be held no later than 90 days from June 29, 2013. If you calculate the 90 days from June 29, it takes you up to September 27, it is therefore clear that an election must be held no later than 27 September.
VG: Briefly during that 90 days who will be in charge?
WN: The constitution says those people who are the President and who are Ministers shall remain in office until the day the new President elected whenever that election is sworn in. In other words, the cabinet will remain as is until that date.
VG: You mentioned a bit about the issues that are good with the constitution, this is a question we get regularly. Since you are there, you are a constitutional lawyer and that is on the issue of land. There is a section that enshrines the right of all to have title to agricultural land. But then there appears to be a clause that takes it all away by perpetually enshrining the right to discriminate the acquisition of land along racial lines. Is this the situation?
WN: The right on land is guaranteed in the constitution, however it is subject to the usual exception, which is to say the state in the public interest can expropriate your land in the public interests for resettlement etc. It also says in respect of colonial land, that’s not the word used but I am simplifying. In the context of colonial land when such land is acquired for purposes of resettlement there will still be no obligation to pay compensation, and this is what is clearly discriminatory and this is one of the imperfections that exists in the constitution.
VG: Briefly because we are running out of time, what is the process now after the referendum?
WN: The Constitution must now be gazetted, wait for 30 days, once the 30 day period has expired, Parliament must then debate it and pass it. It goes to the President to assent. Once that is done a large chunk of the Constitution will come into effect immediately as it is gazetted. Other parts will come in whenever a new President is sworn in.
What is relevant to elections, is that a minimum of 30 days after the new Constitution comes in. ZEC is obliged to do a voter registration outreach so that those who want to register can register. After that the President can then begin the process of proclaiming an election. The Electoral Act requires that the period from the proclamation to the nomination courts is 14 days. It further provides that the period from proclamation to election is 58 days, which is why if you factor in the 30 days for publishing the constitution, the 30 days for voter registration, the 58 days to an election, you are looking at a minimum period of 4 months. And I have not factored the things that still need to be done, the negotiating the amendments to the Electoral Act to be consistent with the new constitution. You are looking at a minimum period of 4 months before you can actually have an election date.
Which is why some of us keep saying, it is not possible if you are going to do it properly to do an election earlier than the last part of August or for that matter earlier than September.
VG: There were also reports from the MDC saying that the Constitution can be changed afterwards. Is this correct?
WN: Of course, every constitution is subject to amendment. There are those clauses which you can’t change, unless you go back to a referendum. There are 2 or 3 of those core ones which are the foundation of the Constitution, they cannot be changed unless you call another referendum. The other clauses can be changed by a two thirds majority in Parliament. When you hear President Mugabe rhetorically saying we are going to restore certain powers of Chiefs after the election, you really need to be naïve to believe that there is any political party which can get a two thirds majority. Many people will tell you that it is even difficult for any party to go beyond a simple majority of 110 in the House of Assembly. So for someone to think that there is a political party now with proportional representation that can muster a two thirds majority to alone change the Constitution to without the consent of other parties I think it’s too much of wishful thinking.