Guest post by Andrew Novak

Voters in Zimbabwe are expected to approve a new constitution in a referendum on Saturday, which will include sweeping changes to the structure of government and to the bill of rights. 

After a contentious four-year process of negotiation and input by the Constitution Select Committee (COPAC), representatives of Zimbabwe’s tripartite power-sharing government have completed a draft constitution that is ready to go to voters.  Earlier talks failed despite a near-agreement in spring 2012, after Zimbabwe’s president Robert Mugabe and the ruling party Zimbabwe African National Union – Patriotic Front (ZANU-PF) pulled out of talks with the two opposition factions of the Movement for Democratic Change (MDC).  More than 70,000 polling officers will be deployed in advance of the Saturday referendum at about 9,500 polling places nationwide.  In addition, international observers are also expected in Zimbabwe, including a delegation from the Southern African Development Community.

The new constitution overhauls the structure of Zimbabwe’s government, imposing term limits on the president, further limiting executive power, and placing the feared Central Intelligence Organization under civilian oversight.  Importantly, the president will no longer have unfettered ability to appoint senators, provincial governors, or members of the judicial services commission, which oversees judicial appointments, although he will still have the ability to appoint members of the tribunal that investigates judicial conduct.

The new constitution ensures fair access to state media to all political parties and places electoral oversight solely under the Zimbabwe Electoral Commission (previously, the state media was dominated by the ruling party and electoral management was divided among several offices).

For the first time, Zimbabwe’s constitution will include social, economic, and cultural rights, including a right to health care and education, although it limits these rights to citizens and permanent residents.  The constitution includes comprehensive protections for women’s rights and the rights of persons with disabilities, but it still bans same-sex marriage; the draft also sharply curtails but nonetheless retains the death penalty.

One noted shortcoming is that power is not devolved to the provinces, so the draft perpetuates the over-centralization of Zimbabwe’s government, although it does successfully limit the ability to suspend constitutional rights during states of emergency.

More generally, the constitution has met criticism for two major reasons: first, it does not completely restrain broad executive power; and second, it was produced in a negotiated fashion between the leaders of the three major parties, lacked sufficient public input, and was rushed to a vote only thirty days after the final draft was published.Although both ZANU-PF and the main column of the MDC under prime minister Morgan Tsvangirai strongly support the new constitution, the splinter MDC formation under MP Welshman Ncube, currently the minister of industry and commerce, has not campaigned in favor of it — though his faction took part in the negotiation and has nominally expressed support.  The MDC-Ncube faction had endorsed former finance minister Simba Makoni in the 2008 elections against Tsvangirai and Mugabe.  As a result of the lukewarm support of the constitution by MDC-Ncube, it is probably likely that the constitutional referendum will receive its lowest levels of support in Matabeleland on the Botswana border — precisely the region Makoni won in the first round of the 2008 elections. Makoni is on record as opposing the new constitution.

On the other hand, the regions that comprise the traditional base of ZANU-PF, including the rural areas of Mashonaland, Midlands, and Masvingo, and the base of the MDC-Tsvangirai in the urban centers of Harare and Bulawayo, and Manicaland province, may be expected to support the new constitution.

At present, the main source of opposition to the new draft is a civil society organization, the National Constitutional Assembly (NCA) under the leadership Lovemore Madhuku.  The NCA, formed in 1997, has been closely allied traditionally to the MDC.  The NCA includes members who form the MDC base, including university students, trade unions and urban salaried workers, church groups, and women’s groups.  The organization has supported a broad-based, truly citizen-driven constitution drafting process — essentially the opposite of the negotiated draft written at Lancaster House in London in December 1979 that involved no public input and included no women among its drafters.  For the NCA, the current draft of the constitution falls well short of a broad-based consultative process.  The impact that the organization’s opposition will have on the referendum outcome is far from obvious due to the public support of MDC leadership.  As of March 13, NCA had one final petition pending at the Supreme Court to have the referendum postponed.

Complicating the constitutional referendum (and the expected June presidential election) is the provisional ruling of the African Commission on Human and Peoples’ Rights (ACHPR) requiring Zimbabwe’s government to permit Zimbabwean citizens living outside of the country to vote, widely seen as a blow against Mugabe and ZANU-PF.  Currently, based on the provisions of the Electoral Act, only citizens abroad on official government duty and their spouses can vote by mail.  Meanwhile, the new constitutional draft does not allow dual citizenship — long a point of contention between the MDC and ZANU-PF.  With a large diaspora comprising as many as three million citizens, with possibly two million in South Africa alone, extending the vote to citizens outside Zimbabwe could add a new level of political uncertainty.  Media reports from mid-March, however, indicated that Zimbabwe is unlikely to comply with the ACHPR ruling for the referendum on Saturday.  The long-term impact of the ruling, however, is unclear.

On the whole, it is likely that the constitution will pass in the referendum on Saturday, which will change many — but not all — of the ground rules of modern Zimbabwean politics and replace the worn and heavily amended Lancaster House constitution with one that is (mostly) up to date.  Given the misgivings of certain segments of Zimbabwean civil society, however, passage of the constitution may be less certain in Matabeleland province and satisfactory voter turnout among supporters of the two MDC factions is far from assured.  In the long run, however, the bipartisan support for the newly negotiated draft constitution will hopefully ensure the legitimacy of the new political order — and more immediately, the legitimacy of the June elections.

Mugabe, who has been president of Zimbabwe since 1987, and has essentially ruled the country as prime minister or president since independence in 1980, is expected to stand again for president later this year.  The country won independence from the United Kingdom following the 1979 Lancaster Agreement agreement between ZANU and then-prime minister Ian Smith’s Rhodesian Front after years of protest from ZANU and other guerrilla fighters against white rule in what was then Rhodesia.

Mugabe agreed to a power-sharing deal with Tsvangirai, who became Zimbabwe’s prime minister in February 2009 following the previous presidential election in May 2008.  Tsvangirai won the first round of the election but pulled out of the June 2008 runoff after intimidation from Mugabe’s supporters.

In the 2000s, Zimbabwe faced multiple economic and humanitarian crises, including a cholera epidemic, famine and some of the world’s most uncontrollable hyperinflation.

Andrew Novak is the adjunct professor of African law at American University, Washington College of Law.