20 September 2008

Zimbabwe: Power Games - Critical Analysis of Deal

analysis

Now that the deal has been signed amid pomp and ceremony, it is appropriate to attempt some assessment of its workability.

It is not easy to pick a spot from which to commence so I shall take advantage of the questions that have been posed by readers of this column as they seek to "unpack the deal", excuse the cliché.

Let me start, however, by saying that the easiest thing to do with a document of this nature is to criticise it and, no doubt, there will be many criticisms. But the flaws in the document are not unexpected. It is a product of political compromise, a rather messy compromise at that, therefore, it was never going to be easy on the eye. But it has to work and here we do not just criticise but try to offer some ideas on how it might achieve its purpose. The interest here is in the provisions appertaining to the governmental framework as stated in Article XX of the Agreement.

The provisions are the bare bones of this new creature and if truth be told, skeletons are not exactly a pretty sight, whatever the time of day.

Paragraph 20.1.1 of the Agreement provides that executive authority shall be shared among the President, Prime Minister and the Cabinet, subject to the Constitution. This and other provisions that follow do not clearly demarcate the boundaries of executive authority, particularly between the President and the Prime Minister and there is scope for duplication of authority and duties.

Nevertheless, there is a crucial proviso in this paragraph, which states that in exercising executive authority, the Parties must have regard to the "principles and spirit" underlying the Agreement to form the Inclusive Government. This is very important because it creates a second compliance-tier beyond the Constitution, so that when exercising executive authority, the President, Prime Minister and their senior Cabinet counterparts do not simply resort to a legalistic interpretation of the Constitution but must, at all times, attempt to uphold the values underlying the Agreement. This is more about political will than strict legal interpretation of the provisions conferring powers.

The provisions relating to the exercise of executive authority clearly present the classic case of a legal labyrinth and negotiating a path will require large amounts of political will on the part of the Parties to make sure the Agreement bears fruit. It is important to consider the power exercised by the President and Prime Minister in respect of the two bodies formed under this agreement: the Cabinet and the Council of Ministers ("Council").

In terms of Paragraph 20.1.3(a) of the Agreement the President is the head of the Cabinet whilst per Paragraph 20.1.4(a) the Prime Minister is his deputy head. The Prime Minister is also the head of the Council. Therefore, whilst the PM sits in both bodies, the President sits only in the Cabinet. The structure of these two bodies does not present a good sight and there is potential for duplication and probably clashes of authority and duties. It is clearly a product of compromise in respect of sharing executive authority between the President and the PM.

Whilst the agreement does not specify which of the two bodies takes precedence between the Cabinet and the Council, it seems to me that in effect the Council is no more than a "special committee" of the Cabinet. It is notable that the Council comprises of all members of the Cabinet and that the Council effectively reports to Cabinet, so in some cases (if not all) there could be a bizarre scenario whereby Cabinet effectively reports to itself. They are effectively the same animal, by different names. A lot will depend on the practicalities, such as which of the two bodies meets more frequently and whether in fact the Cabinet will simply rubber-stamp decisions or recommendations of the Council. Given that the Council will comprise of both Zanu PF and MDC members, chances that the President could later veto the decisions of Council, in his capacity as overall supervisor may be remote but of course, cannot be ruled out.

To avoid the clashes, this is how the new system might work: If I were to use an analogy from corporate organisations, the Council is more like the management board of a company which is in charge of the day-to-day management of government business under the direct supervision of the Managing Director, in this case, the Prime Minister. The Cabinet on the other hand is like the Board of Directors, meeting periodically under the supervision of the Chairman, i.e. the President and his vice-presidents who, to take the analogy further, are effectively non-executive directors. If understood in that way, it would seem that the Prime Minister has direct charge of running government and the President oversees this work in a supervisory capacity.

It is not clear what the Vice-Presidents will do given that the powers that they would normally have exercised are now effectively with the PM. Even if they were to stand in for the President in his absence, it is not clear why the country needs two of them. This plainly is a product of political appeasement.

There are a number of provisions where the President is required to exercise his authority in "consultation" with or on the "advice" of the PM or cabinet. It is important to note that this does not mean that the President must follow the advice or information given during consultation. He can consult or get advice but ignore it in the end. The Agreement makes no provision for the President to give reasons for his decision for ignoring the advice or consultation. This is not right. A more robust provision would have been to require the President to at least provide reasons -- in my view that would give greater effect to the idea of co-operation and transparency. This cannot now be changed but when the new Constitution is discussed, this is an issue that might require some consideration.

There is Para. 20.1.2(f) which requires that Cabinet decisions be by "consensus". I am not sure what the current practice of Cabinet is in respect of decision-making but it seems to me onerous that decisions be taken by consensus. With 31 ministers and diverse and controversial matters they have to deal with, there will be inevitable differences. It makes almost redundant the idea of "collective responsibility" also mentioned in that clause. The idea of collective responsibility is that even if you disagreed with your cabinet colleagues and voted against a majority decision you nevertheless take responsibility for it as a member of cabinet or you resign. It is probably a small and inconsequential worry on my part but this requirement for consensus as opposed to simply a majority decision could be stumbling block in decision-making.

This brings us back to an issue touched on in last week's column, namely the making of decisions in the informal sphere of political party organisations. Our recent political history has shown that crucial policy decisions are often made in this informal sphere, e.g. the Zanu PF Politburo or Central Committee as opposed to the formal sphere of government. Parliament and Cabinet have traditionally operated to rubber-stamp those decisions. This has created a partisan and negative political culture that could affect and undermine the efforts of the Inclusive Government.

Of course, Zanu PF will no longer have the monopoly of power given that it does not have control of Parliament or Cabinet. Nevertheless, this only exacerbates the problem, especially if Zanu PF continues to resort to the informal sphere and the two MDC formations also resort to their respective National Executive Councils. If they all resort to their different informal spheres, the Inclusive Government could be relegated to a secondary forum which will simply

become a battleground. This could also affect the otherwise noble institution of the National Economic Council created under Article III of the Agreement and indeed Council and Cabinet.

Political parties should, of course, remain independent because we certainly do not want to go down the treacherous road of the one-party state and democracy requires that political constituencies be consulted. But it is necessary to bear in mind that the success of the fragile Inclusive Government requires higher levels of cooperation, compromise and goodwill on the part of all parties. The leaders and their parties may benefit from a crush course in studying the political systems of those countries across the world that work on the basis of similarly coalition or Inclusive Governments - they might learn a thing or two on what to do and what not to do in the relationship between political organisations and central government.

This coalition arrangement has been described variously as an attempt to mix oil and water. There are clearly differences between the ideological bases of the Parties. The difference in tone and substance of the leaders' acceptance speeches at the signing ceremony were indicative of the different schools of thought followed by the organisations they represent. Morgan Tsvangirai and Professor Arthur Mutambara talked about hope and the future but President Robert Mugabe seemed rooted in an, admittedly, bitter colonial past. No doubt, the country cannot ignore the gravity of history, but it is also necessary to look to the future and possibilities that it offers. One hopes that those speeches are not the harbingers of a difficult future because in all likelihood, if someone tries to build bridges with external partners, especially in the West, there is always the risk that another will set fire on them.

There has been criticism and rightly so, that the government is too large, given our dire economic circumstances. It is notable that in order to give effect to this compromise, there will be an additional 12 appointees to Parliament - nine senators (Para. 20.1.7(b)) and three (albeit non-voting) MPs in the House of Assembly (Para. 20.1.6(5)). Not only will it be expensive to sustain, the efficiency of government could be affected by its cumbersome structure. The "jobs for the boys and girls" impression this creates only perpetuates the culture of political indulgence and appeasement that Zimbabwe should be steering away from.

This should not be about who deserves what post but who can deliver an efficient service to revive the economy. As it happens, luxury vehicle dealers must be rubbing their hands with glee at the prospect of new orders. Our new leaders may want to read the bit about Thomas Sankara, then a young leader who upon assuming power in Burkina Faso, decided that the days of conspicuous consumption were over and ministers were allocated only the modest of vehicles. It would be a pleasant surprise for Zimbabweans if the new government is prepared to eschew the luxury of previous governments.

This analysis focuses on a small but important part of the Agreement. There are many other positives to be taken from this and many other negatives. We shall in future try to assess the other parts, again not just to criticise but to see how this can work. I, for one and readers of this column may recall, have not doubted that the solution to the impasse always lay in some form of negotiated settlement. It was not the most ideal but it was realistic path given our circumstances. As has been written before, if we cannot get what we like, we have to like what we can get. But it has to work. We must make it work. If our leaders take an overly legalistic view of the Agreement, it will most likely fail. More important is the context of the Agreement, in whose spirit and principles the powers should be exercised. Unilateral action or behaving like loose canons, as has been the case in previous years, will only cause great hardship.

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