Here is an excellent piece by Derek Matyszak:

Can’t say no?

The constitution making process has revealed the utter contempt with which Zimbabwe’s politicians treat the electorate, from Operation Chimumumu of the outreach programme, to insulting our intelligence by constantly claiming that the document they have presented as the proposed new constitution reflects the people views, rather than the being result of inter-party negotiation, and then allowing insufficient time for most people to consider the substance of the draft.

Should, however, one reject the draft simply to punish the politicians for this arrogance and to demonstrate that the electorate refuses to be treated so shoddily? On the other hand, if, regardless of the process which produced it, a brilliant document has been prepared is one not being churlish and shooting one’s self in the foot by rejecting the draft? Hardly. Even the proponents of a “yes” vote concede that the document is a poor thing (but their own), the best they could do under the circumstances. It is, we are told, nonetheless “incremental progress” and we should thus vote “yes”.

We have heard this argument before. We were told that the Constitutional Commission’s draft of 2000 was progress and we should thus vote “yes”. But the people voted “no” because the draft did not achieve that which they had set as their objective, to reduce the vast powers of the President.

We were also told to support the GPA because, although the accord left Mugabe’s vast powers intact, it was the best that could be obtained under the circumstances, was incremental progress and was the means by which the integrity of the electoral process could be restored. A new constitution was presented as one of the instruments by which this would be accomplished.

This being the stated intention behind the constitution making process, the draft should be rejected on this ground alone. Its provisions will do nothing to restore the integrity of the electoral process. Certainly it contains hopeful clauses stipulating that elections “must be peaceful, free and fair, free from violence and other electoral malpractices” and that “neither the security services nor any of their members may, in the exercise of their functions act in a partisan manner; further the interests of any political party or cause; prejudice the lawful interests of any political party or cause; or violate the fundamental rights and freedoms of any person.” But the constitution very deliberately fails to include any remedy or steps that can be taken if there is no compliance with these provisions. They are thus little more than pretty window dressing designed to allow politicians to tell the naïve that the draft is not all bad.

If the new constitution was to address the issue of electoral integrity, then this was the moment to attend to institutional reform, particularly the partisan nature of the criminal justice process and security sector which has played a key role in subverting democratic choice in the past. The MDC politicians proudly tell those who have felt or fear the double whammy of the combined operations of the Commissioner-General of Police and Attorney-General, that this problem has now been addressed. The Attorney-General will no longer be in charge of prosecutions. This will now be done by a Prosecutor-General. They fail to mention that the draft specifically provides that the current Attorney-General, Johannes Tomana, will be the new Prosecutor-General, that the President has the ultimate power to determine his successor in any event and that Chihuri will remain in his post. Hence, rather than addressing partisanship in the application of the criminal justice system, the draft is carefully drawn to ensure that it continues. Similar criticism can be directed at the problem of security sector governance. To make the point, one need only take note of one of many adverse provisions: while in democracies the operations of the intelligence services are governed and regulated by statute, the draft again specifically includes a clause to ensure that this does not happen and allows the intelligence services to remain the unregulated plaything of the President and to be used for party political purposes.

The “yes” proponents either obfuscate these issues or ask us to focus on the “incremental gains” reflected in the draft. The incremental gains appear predominantly in the unquestionably greatly improved Declaration of Rights. Its provisions are better for women. Gay, lesbian, bi-sexual, transgender and inter-sex rights are also given strong support, albeit not by name. There is improved freedom of expression and the media etc.

These “incremental gains” in the Declaration of Rights do nothing to encourage a “yes” vote. They require an uncompromised and uncompromising judiciary and legislative reform to be realised. Contrary to the basic principle of the separation of powers, the draft ensures that the head of the executive retains control over both the judiciary and the legislature. Although there is an improved system of advertising for positions and the public interview of candidates for judicial office, if the President does not like the nominees that emerge from the process, he can by-pass this process and select candidates he finds more amenable. Similarly, the draft retains the President’s power over the legislature. Egregiously, under the present constitution the legislature consists of Parliament and the President who has the power to veto legislation. This is retained under the draft. Certainly, a two-thirds majority in Parliament can override the Presidential veto. But this is highly unlikely to happen in practice. The President is elected at the same time as the Members of Parliament. It is thus improbable that Parliament will comprise enough members opposed to the President, or of a different party, to counter his or her veto.

The “yes” and “incremental gain” proponents also disingenuously claim that once they win the elections they will amend the constitution to attend to these problems. But any constitutional amendment will require a two-thirds majority in favour in both Houses of Parliament. The current political configuration suggests the neither party is likely to be able to muster this majority. Hence, once the draft is accepted, the constitution making chapter will be closed and we will be stuck with a document that none regard as satisfactory for the foreseeable future. Politicians from the winning party, which ever that may be, are likely to be comfortable with the overweening powers of the President, even if the electorate is not. A “no” vote will keep the constitution making process alive, which might then continue under more favourable conditions, with a different balance of political power, at a later date. The GPA only requires that there be a referendum on the constitution before the elections – not that a new constitution be in place by then. So why the rush to bring the constitution making process to an end?

The rush is because the draft constitution provides a convenient fig leaf for SADC’s ineffectiveness and anaemic responses in the face of ZANU PF’s refusal to affect the reforms necessary for a credible election. None of the essential reforms necessary for the integrity of the electoral process have been implemented during the course of the GNU. It also provides a convenient escape route for SADC, facing yet another flawed election in Zimbabwe. SADC has already started preparing the claim that although “not all” the reforms provided for by the GPA were implemented at least the election was conducted under a new constitution – an approach which delights ZANU PF. From there will follow the non-sequitur, (based on the off key refrain that a new constitution will protect the integrity of the electoral process) that the vote substantially reflects the will of the people and the poll is thus acceptable. A “no” vote will strip away this fig leaf and close this escape route for SADC. The narrow democratic space in which the elections will undoubtedly be conducted will thus be there for all to see.

The advantages of a “no” vote are thus readily apparent. It requires one to peer very closely at the draft through thick rose tinted glasses to discern any advantages accruing from a “yes” vote.

- Derek Matyszak, March 05, 2013

Exactly how I feel.

Elections in Africa have been widely tainted with rigging and manipulation due to the manual system used to tally the votes but as some countries try to move with the times and embrace Information Communications Technologies it seems like a new space for vote manipulation has been created.  Even in first world countries like United States of America electronic voting machine fraud led the to the 2000 Al Gore/Bush election controversy. Some may still argue and say ICTs are the way to go if we are to avoid the three months wait to get election results. But after watching Kenya’s electronic voting system collapse, a dark spell was cast over both the electronic and manual voting systems as the Kenyan vote was put at risk.

The recent elections in Kenya put the system to test in the presidential poll when it failed at the critical moment of need. Election officials were forced to resort to manual registers. A lot of questions are still being asked about how safe your vote is with ICTs. The electronic live streaming of the results crashed on Day 2 of national tallying and overload was blamed for the system crush. Whether it was real overload, or human tampering it still tainted the elections results with accusations of irregularities now being contested in court with one presidential aspirant refusing to concede defeat. Maybe the electoral body in Kenya had so much faith in its electronic system that they never bothered to put a back up plan in the event of the mishap, but those from Odinga’s camp will tell you that after the system failure figures started fluctuating in favor of Uhuru.

Australia is lifting sanctions against various ZPF officials. Why? Because the constitutional referendum has been announced. Makes you wonder whether they live down under or on another planet altogether. Maybe its the same thing because they seem to have conveniently chosen to ignore the assault on human rights defenders in the run-up to the referendum. They’re a bit of a cheap date if all they need is an “announcement”.

You hear stories about cops arresting touts and kombi drivers for picking passengers from “undesignated pick up points” but you never imagine that you will be arrested for boarding a kombi at an “undesignated pick up point.”

So it was that on a Sunday morning around 9 o’clock while travelling with my pregnant wife we boarded an almost empty kombi in Bulawayo’s CBD, something routine that we do all the time. Sitting in front with the driver were two passengers, and at the back seat sat three other people, and as we sat, a woman followed and sat on that seat that blocks the entrance of other passengers.

When the tout told her to kindly move to the other seat, she ignored him and instead concentrated on punching numbers on her Blackberry.

Again the tout asked her to move, but she coolly told the driver, “you are under arrest.”

Turns out the other three “passengers” sitting at the back seat were also cops as they began threatening the touts who were now pleading with the female cop to at least let the passengers go.

None of the cops had bothered to flash their IDs as would be the standard routine.

As the touts crowded the kombi pleading for our release, it only appeared to strengthen the female cop’s resolve to “take us in.”

Turned out the touts knew better: they could well find themselves under arrest too for “interfering with the lawful duties of an officer of the law.”

Tails between their legs, the touts watched as the kombi drove off.

The driver was told to drive to Central Police Station, and as he took his time, driving slowly as if kerb crawling and asking the female crime fighter to release us, she told him to drive on and shut the fuck up. When we got to the station, a uniformed cop who met us by the gate said to the arresting officer “let these others go just take two,” referring to the two fellows who had been sitting with the driver.

But the determined crime fighter would have none of it.

So it was that together with my pregnant wife we found ourselves sitting on the dirty floor of a small room at the Central Police Station.

The arresting officer quickly jumped into action to “process papers” in preparation for fining us for boarding a kombi at an undesignated spot.

I was hearing it for the first time, and so did everyone else here.

But the cops were quick to recite what they learned at Morris Depot: ignorance of the law is no defence!

I just looked at them in utter disdain.

I’m like, “what the fuck is this?” But what do you know.

A scrawny male cop says, “it wasn’t necessary that all these people come here,” in response to protests by some passengers from another kombi that they shouldn’t have been arrested.

“It is the arresting officer’s discretion to let passengers go, since you have already been brought here, there is nothing I can do,” the thin cop explained.

We after all could be “cautioned” and let go with a warning not to board kombis at undesignated pick up points.

And the discretion starts working there for others. Incompetent nincompoops, uninformed uniformed forces, I curse. Turns out one of the chaps who had been arrested with us was himself a cop stationed in Fairbridge.

The stern arresting officer let him go.

Then a young man arrested in another kombi is also let go: “Warned and cautioned,” to use their parlance.

A dark skinny fellow also arrested with the young man keeps the small room alight with his own brand of humour despite the circumstances.

When the cops ask for his age, he tells them he is 52.

The cops don’t believe him because he doesn’t look it.

“Just believe what I’m telling you,” he says.

But they have a hard time doing so, seeing the fellow is on the tipsy side of things.

So, when were you born, a female cop asks him.

19 September 1962, he replies.

And the cops, now numbering about eight, tear into him like greedy Zanu PF officials tearing into Marange diamonds.

It’s a slow day and these cops could use a bit of some show and waste people’s time pretending they are a busy lot.

“Do you know it is offence to give an officer of the law false information,” they ask him. If you were born in 1962, you are certainly not 52, they tell him.

“Believe what you want, you asked for my age I gave it to you. I was born 19 September 1962 and am 52 years old.”

But I do not find anything amusing.

I shouldn’t be sitting here with a pregnant woman among this crap.

One by one, our names are taken and what do you know, I supply a false name to an officer of the law!

Why the fuck should I give them my real name? Everyone does it as far as I am concerned! Unlicenced drivers give cops names of buddies or brothers with licences who will simply walk into the police station pay the fine, end of story.

Meanwhile, the funny guy asks for the loo.

He is escorted by a male cop, and we hear his signature loud laugh as he walks along the corridor, and it is an hour later that I get to know what that boisterous laugh was about.

He did not return!

Turns out like Bart Simpson, he was saying “so long suckers!”

The visibly malnourished male cop, who the bevy of female police officers address rather comically referring to him as “shef” says those with fines can come with him to pay up.

All the while I am sitting and wondering if this is really a job that one actually leaves their warm beds in the morning, kisses the wife and kids and says, “I’m off to work” meaning this crap. I tell the wife no one is paying anything.

There are murmurs of protests as about fifteen people arrested for boarding a kombi at an undesignated point say they have no money to pay the USD5 fine.

Among us is a young woman who is having a terrible time.

Apparently she is a foreigner and cannot understand a word of Shona, which turns out to be the standard police station language.

She calls someone and says over the phone, “I don’t know why I was arrested and I cannot understand what they are saying, please hurry and come here.”

I feel sorry for her. But I feel even “more sorry” for these cops.

A room full of female cops watches with glee a heavily pregnant woman sitting on the floor arrested “for boarding a kombi at an undesignated pick up point.”

My rage by now knows no bounds. But I know better than raise my finger. Or mouth.

I have had my own fair of brushes with the law in the past and attempted to question the logic of arresting someone for public drinking when they are sitting in front of their home and lived to regret it.

We sit, and sit, and sit, and sit.

And the female cops are evidently enjoying the power they wield over lesser mortals.

Of course I have enough money in my pocket to pay the fine, enough to pay for everyone in the room even, but I have a problem with making a donation to the state because some silly cop thinks she can be overlord over civilians. Why give her that satisfaction? Yet I still haven it at the back my mind that I can pay the fine, get on with my life and get away from this nonsense.

Yet I still have at the back of my mind the Anti-corruption Trust of Southern Africa report on traffic police corruption that these people detain you long enough to break you to bribe them. This is it, I think to myself.

After all, the 52 year old chap disappeared without any reference to him going to pay the fine.

I am going to sit this crap through, but what about the pregnant wife?

Then I suggested to my wife that she asks one of the remaining female cops if can use the loo, calculating that seeing her big belly, “she would have mercy on her” and release her “with a caution.”

Then, according to my flawed logic, she would tell them she is travelling with her husband and we would be on our way.

After all, didn’t their thin boss say it is their discretion to release us?

Wasn’t the other young man released with a mere caution? Why not then a pregnant woman?

Much to my chagrin, this doesn’t work!

She is shown the loo and returns to sit on the floor without any word!

I can see this going to take forever.

Minutes later, one female cop says, “maybe we can release the pregnant lady.”

She is met with silence from her colleagues.

The room listens in anticipation.

Silence.

The arresting officer, in her own way of feminine mystique, makes damn sure her eyes do not meet ours.

I can see she is making an effort to avoid any eye contact with a pregnant woman, something which would appeal to her feminine sensibilities and conscience and persuade her change to her mind.

We sit.

I guess this thing of having a pregnant woman in this dirty little room is gnawing at their insides. Or not.

Then one of them suddenly says, “madam, you can leave.”

The madam says, “I cannot go and leave my husband here.”

“Ah, you pay his fine and you will both be on your way.”

“But I don’t have any money,” the madam says.

“Too bad, then sit there with him!”

And that’s the end of it. No one is released.

The cops who arrested us and did not bother flashing their police IDs and chose instead to masquerade as passengers announce that they are leaving, going back to the street to fight more crime.

And no doubt they would soon be coming with more passengers arrested for “boarding a kombi at an undesignated pick up point.”

The impoverished male cop returns and tells us we can wait for another superior cop who is the only one who can release us at this stage without paying any fines.

But I have had it up to my butt.

Now, all the cops have left and we have been left under the watch of a female cop who has just arrived.

A guy arrested in another kombi, noticing that this female cop is a Ndebele, starts sucking up to her, patronising her even.

He doesn’t understand how a Ndebele woman can just stand and look when other Ndebeles are being unfairly treated.

Look at this pregnant woman, the man says, what if something worse than “boarding a kombi at an undesignated pick up point” happened to her right here in this room considering the state she is in, what would you have to say for yourself?

The cop blushes and gives the tired line that “what can I do? I am not the one who arrested her.”

And that is the end of it.

I whisper to the wife to tell the cop we are paying the fine and leaving this dump.

And what does she say? “Why didn’t you say this already!”

Yeah right, we thought, rather naively, we would only be “warned and cautioned!”

We pay the fine and walk out to the bustling streets of Bulawayo CBD and smell freedom.

The other ‘prisoners’ and the young female foreigner?

Well, I don’t know but am pretty certain they were released without paying fine.

Criminalising Zimbabwe’s human rights defenders isn’t necessarily a new strategy for the police, but it is one they’ve adopted in a particularly cunning manner in recent months.

Last Thursday night, ZBC viewers saw Zimbabwe’s Police Commissioner Augustine Chihuri personally name Zimbabwe Peace Project director Jestina Mukoko as “wanted,” accusing her of operating an illegal organization. According to someone who watched the broadcast, “If you didn’t know any better, after you watched the news, you’d think Jestina was a criminal.”

In a segment rich with the fabrications standard in state propaganda, the police described her as “on the run,” even though police had been in touch with her lawyers all week. Mukoko wasn’t in hiding, but she was the wrong person to answer the police’s questions, which were more suitably directed to the ZPP Board Chairperson, not its Director.

Particularly given her 2008 abduction, disappearance and 89-day detention, which she speaks about movingly in this Oslo Freedom Forum talk, Mukoko was not in a rush to enter police custody. Be that as it may, on Friday Mukoko presented herself to the police, and was charged with “a litany of baseless charges.” Much to the relief of her lawyers, colleagues and Zimbabwe’s human rights community more generally, Mukoko was not detained on Friday. Civil society has condemned the harassment of Mukoko and other human rights defenders. It would appear Mukoko is being targeted for the work of the Zimbabwe Peace Project in monitoring violence – particularly election related and political violence.

Thus, it’s all the more ironic that the Zimbabwe Electoral Commission has announced that it “won’t accredit NGOs under probe.” For example, ZEC turned down a request from ZimRights to observe the referendum. ZimRights staff including Leo Chamahwinya and Okay Machisa have been subject to police raids, prolonged detention and harassment since December last year. The charges against the ZimRights team are just as baseless as those against Mukoko and ZPP.

It’s a cunning strategy worthy of a George Orwell story – Send the police to investigate the organisations which monitor and report on violence and elections, and then tell these organisations that they can’t be accredited to observe elections, because they’re “under investigation.”