»If I vote yes in the referendum,» an old woman from Gutu in rural Zimbabwe said to her son, «will that mean that I am saying yes to Robert Mugabe? And if I vote no, am I voting no to Morgan Tsvangirai?» In Zimbabwe, the process of voting on a new constitution cannot be separated from the personalities that dominate Zimbabwe’s politics.
A key component of the agreement that brought together Zimbabwe’s feuding political parties in a unity government in 2008 was a new constitution to be put to the public vote. On Saturday Zimbabweans had that vote. The state-owned Sunday Mail, which greets all government initiatives with unbridled enthusiasm, reported that «most polling stations recorded high voter turnouts». As of writing, the count was still going on, but it was clear that just over 2 million people – less than a third of the 6.6 million registered voters – had taken part. The key feature of this referendum was voter apathy.
In terms of the outcome, this will not matter: only a simple majority is required. But Lovemore Madhuku of the National Constitutional Assembly, which has campaigned against the constitution, argues that a turnout of less than 50% would amount to a rejection of the constitution. His principled and determined campaign received little publicity, but it had strong arguments.
There are certainly some troubling compromises in the constitution. During its first 10 years, if a president died or resigned from office, the party of that president would choose the new president, meaning that Zimbabwe could well end up with a president that no one had voted for. A strengthened constitutional court is weakened by a provision that in the first 10 years it is to be composed of the current judges of the discredited supreme court. On the charged issue of land ownership, the constitution falls far short of international norms of non-discrimination. Compensation for expropriated land will depend on whether land belonged to someone «indigenous» – a not particularly subtle code for black.
The no campaign also objected to the constitution-making process. Politicians promised it would be «people-driven», but the constitution has been negotiated only by the parties in parliament. The «people» have been asked to rubber-stamp the process once only now the politicians are done with it, and even that rubber-stamping is problematic: a reported 90,000 copies of the final draft were printed for the 6.6 million voters – who had less than four weeks to read it.
There are, however, strong arguments in the constitution’s favour. The most significant change to the presidency would be the introduction of term limits. Considering that most Zimbabweans – the under-30s – have only ever known one leader, this would be a radical change.
The constitution also addresses the citizenship woes of the millions of disenfranchised Zimbabweans born in the country to parents from Malawi, Zambia, Mozambique and elsewhere who are currently labelled «aliens».
The constitution is particularly strong where it puts the aspirations of ordinary Zimbabweans at the centre of government. A strengthened bill of rights obliges the state to put the empowerment of women and girls ahead of regressive cultural practices; makes significant inroads into the death penalty; forbids all forms of torture; guarantees freedom of expression and belief; and imposes obligations on the state to take steps to ensure access to shelter, health education, food and legal aid.
A constitution, however, depends on a culture of constitutionalism – of respect for the constitution and adherence to its terms. The yes vote will almost certainly pass, and Zimbabwe will get its new constitution, but a low turnout will suggest that Zimbabweans may be a long way from constitutionalism.
Moreover, new elections are supposed to follow the referendum. A low turnout in those elections would be bad news for the Movement for Democratic Change and the smaller parties who rely on their supporters to go voluntarily to the polls in large numbers. However, it would be good news for Zanu-PF, which has always prevailed even when losing a vote.
A Zanu-PF win in the elections will be bad for constitutionalism, as the party has not hesitated to trample on the constitution when it feels its power slipping away. The recent arrests of civil society activists and lawyers attest to this disregard of the rule of law. If Zanu-PF wins yet again, the constitution that was supposed to be Zimbabwe’s new supreme law may end up being nothing more than another law to be discarded by Zanu-PF. And the losers will be ordinary Zimbabweans like my friend’s mother in Gutu – let down once again by the politicians.
Petina Gappah lives in Zimbabwe and is an Open Society Fellow for 2012-2013.