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Commercial Farmers' Union of Zimbabwe

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Zim can revert to old constitution if GPA fails

‘Zim can revert to old constitution if GPA fails’

Friday, 18 February 2011 09:27

Paidamoyo Muzulu

ZIMBABWE can revert to the old constitutional order minus Amendment No19 if
the Global Political Agreement (GPA) signed in September 2008 collapses,
constitutional lawyers said this week.

This follows statements from Zanu PF, including President Robert Mugabe who
pointed out that he would call for elections if the GPA collapses, using the
constitution as it was before the 19th Amendment which created the
government of national unity.

Late last month, Mugabe said: “For those who do not want, we will simply
dissolve parliament and go for an election under the old constitution.”
Zanu PF spokesperson Rugare Gumbo said elections should be held with or
without a new constitution.

“If we can’t find the money (for the constitution-making process which has
since stalled) then the constitution-making is inconclusive and then we
revert to the Lancaster House constitution — minus Constitutional Amendment
No19,” Gumbo said.

Political analysts concurred this week that Amendment No19 of 2009 would
automatically fall away from the supreme law once the GPA is terminated by
its signatories —  Mugabe, Morgan Tsvangirai and Arthur Mutambara from the
smaller MDC faction.

Amendment 19 legalised the GPA that had been signed by Zanu PF and the two
MDC formations after an inconclusive 2008 presidential election.

The Amendment created the framework for power sharing in the coalition
government among the three political parties. It created the offices of
Prime Minister and its deputies in addition to providing a ration of sharing
ministerial positions within the cabinet.

Constitutional lawyer and National Constitutional Assembly national
chairperson Lovemore Madhuku said the present government owed its existence
to GPA.

“It is legally correct that Mugabe will have the powers to call for
elections without consulting the Prime Minister if the GPA collapses,”
Madhuku said. “Mugabe through the controversial mandate he got from the June
27, 2008 election will remain the President and use powers invested by the
constitution minus Amendment 19.”

Madhuku hastened to add that Mugabe’s rule would not be without challenges
from political foes.

“If the GPA collapses we return to the pre-GPA position. This is a
controversial political point but not controversial from a legal point,”
Madhuku added, “The June 2008 electoral mandate is controversial as there
are political legitimacy issues surrounding it.”

Madhuku said Zanu PF and Mugabe were likely to cause the collapse of the GPA
so that the country may return to the pre-GPA era.

The inconclusive 2008 election and violence surrounding the poll gave rise
to the call for a coalition government as the country healed.

University of Zimbabwe Constitutional Law lecturer Creg Linnington said
constitutional Amendment 19 will remain in place as long as the Inter Party
Agreement, also known as the GPA, remained in force.

“Consultations between the President and the Prime Minister will have to
take place on any serious political decisions as long as the agreement is in
subsistence,” Linnington said, “Schedule 8 of Amendment 19 compels the
President to consult the Prime Minister as long as the agreement is in

Mass Public Opinion Institute (MPOI) director and University of Zimbabwe
Political Science lecturer Eldred Masunungure questioned the political
correctness of taking the country back to the pre-GPA period though it was
legally feasible.

“Constitutionally the President may be allowed to take such an action,”
Masunungure said, “In the political arena it is different. Is it politically
correct to dissolve the GPA and call for elections?”

Masunungure urged restraint in taking such action as the country had not
healed enough and neither had the inclusive government fulfilled all the
condition of the agreements.

The GPA calls for the inclusive government to do reforms on the
constitution, media, security sector and electoral laws among other issues.

MDC-T secretary-general and one of the GPA negotiators, Tendai Biti, said
Amendment 19 fell away once the GPA collapses but he did not foresee that
situation arising any time soon.

“It is true that the amendment falls away as soon as the GPA is dissolved,”
Biti said, “However, I do not think that any party in the inclusive
government would want to see the GPA collapse.”
The thin line between politics and the law has been very evident since the
signing of the GPA more than two years ago and political parties have
interpreted it differently to suit themselves.
The GPA, signed at the height of the political and economic crisis, is not
very explicit hence the problems with its implementation and various
interpretations. This has rocked the unity government on several occasions,
including Tsvangirai’s recent lawsuit against Mugabe for alleged
constitutional violations relating to the president’s unilateral
appointments. The GPA states that Mugabe should consult Tsvangirai before
making key appointments.



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