Opinion / Blogs
Copac's moment of truth - Prof Jonathan Moyo
26 Aug 2012 at 08:45hrs | Views
After a series of time-wasting stop-starts and foreign intrusions punctuated by a litany of false stalemates caused by the self-evident political immaturity and inexperience of some of its key gladiators who do not know the difference between politicking and politics, Copac's moment of reckoning has finally come.
This follows Zanu-PF's official confirma­tion at an ordinary session of the Politburo yesterday of its amendments to the so-called final draft constitution prepared by Copac's management committee made up of GPA negotiators.
The thorough and substantive amendments from Zanu-PF entirely based on the views of the people gathered during the Copac outreach programme and sanctioned by the party's Politburo after four separate and long meetings totalling some 50-odd hours of meticulous work have essentially enhanced and enriched the Copac draft produced by GPA negotiators on July 18 by improving it from a committee draft to a people's draft. A committee's draft has now become a national people's draft.
That the Copac draft has now been tremendously improved, enhanced and enriched by the amendments incorporated by Zanu-PF to the unquestionable point of producing a people's draft is self-evident to anyone who has read the latest amended draft, including the likes of Welshman Ncube, Tendai Biti and Douglas Mwonzora who - while pretending to be angry in public during the day by making foolish statements that they will most certainly regret sooner than later - have at night confided to many in private conversations, that can be corroborated if they dare say "nyo", something to the effect that they in fact find most of the amendments "to be thoughtful, serious, compelling and expose the grey areas of the July 18 Copac draft because the amendments reflect the views of the people and are based on sound constitutional principles that are permanent and neither temporary nor opportunistic".
This truth, which is about to prevail because it is inescapable, has not yet come out to allow for a serious focus on constitu­tional issues such as the 12 listed below due to the fact that it is currently being oppressed and suppressed by five pathetic fallacies.
The first fallacy which has been spread all over the place, including within Sadc circles by Morgan Tsvangirai particularly in countries like Botswana and Tanzania, is that the July 18 Copac draft is final and cannot be amended allegedly because each page was signed or initialled by each of the members of the Copac management committee.
But this is, of course, a fallacy which can only be believed by dunderheads because the management committee of Copac is a supervisory structure created by GPA principals and, as such, it cannot be superior to its creators to the point of binding them or tying their hands. That proposition is non­sensical.
The GPA negotiators appended their sig­natures to authenticate their work and not to pre-empt their principals.
In any event, it is also now clear that the Copac management erred by turning itself into a drafting committee when it was supposed to be a supervisory committee to oversee but not replace the work of Copac.
This fact is, however, now water under the bridge and life must go on, which is why GPA principals and their political parties have a duty and obligation to review the July 18 Copac draft prepared by its management committee and make amendments if they have any.
That process cannot be avoided except in the heads of those among us who are given to truancy and delinquency.
The second fallacy is that there are now two drafts: One Copac and the other Zanu-PF. Anyone who believes this will believe anything.
The fact is that there is one draft with amendments from Zanu-PF. When you amend something with a view to improving it, you do not create two things but you simply improve the one thing that you have. The Constitution of Zimbabwe has been amended 19 times and those amendments have not meant that we now have several or even 19 constitutions as that proposition would be simply ludicrous.
The factual position in terms of the con­stitution-making process is that the latest Copac draft is entitled, "Copac" The Draft Constitution of Zimbabwe, 18 July 2012, Incorporating Approved Zanu-PF Amend­ment".
This is the only draft that everyone involved in the constitution-making process is currently reviewing or studying. There can be no going back from this draft. Any way forward must necessarily be an improvement of this draft. In the circumstances, the fallacy of two drafts is just prop­aganda.
Then there is the third fallacy that the amendments incorporated by Zanu-PF are about President Mugabe's powers.
It is shameful that this is coming from lawyers like Welshman Ncube who are expected to know better.
This fallacy is being peddled by those who are personalising constitutional issues in the vain hope that, because they have promised their foreign handlers and some Sadc leaders to use Copac to effect regime change and succession politics, they can get away with deliberately producing a defective or imperfect constitution with no exec­utive powers and yet in terms of the July 18 Copac draft the President is directly elected by the people to exercise executive functions on their behalf.
You cannot have a non-executive President who is directly elected by the people upon whom executive authority is vested. For the same reason you cannot compare the executive powers of a president who is elected by Parliament, as is currently the case in South Africa, with those of one who is directly elected by the people.
But Zimbabweans will be pleased that, unlike the two MDC formations which are showing a fatal determination to abuse the Copac draft constitution by turning it into their election manifestos in pursuit of their so-called transitional objectives of grabbing power outside the electoral process with what they hope will be help from Sadc, Zanu-PF has lived up to its revolutionary responsibility as a party of liberation to ensure that the Copac process produces a permanent constitution based on the views of the people gathered during the Copac outreach programme.
A president who is directly elected by the people, such as the American president, must of course have executive powers and he must be able to exercise those powers through and not under a cabinet that he chooses to assist him and not to supervise or constrain him.
This is an indubitable fact. The proposi­tion that the constitution of Zimbabwe should be stripped of its necessary executive powers and be temporarily turned into a rubber-stamping clerical office in order to personally deal with President Mugabe for transitional purposes is not just a fallacy unworthy of our heroic country but is also constitutional rubbish and the masses are now ready to expose this rubbish for what it is.
The Copac draft constitution prepared by the Copac management committee on July 18 provides for a directly elected executive president and not for a glorified clerk.
The amendments incorporated by Zanu-PF merely give honest effect to this fact as a permanent and not temporary arrangement designed for any particular individual today or tomorrow. In 2000, Welshman Ncube and company peddled the same lie about President Mugabe vis-à-vis the Constitu­tional Commission draft around which they framed their "yellow card" election cam­paign for the 2000 parliamentary election and if they think they will get away with that again then they are joking and their joke is not funny.
The fourth fallacy that both MDC formations have been barking out is that making amendments to the July 18 draft prepared by the Copac management committee is tantamount to seeking a repeat of the 2008 post-election violence.
Frankly, this is a shocking claim which proves the dishonesty of those peddling the claim.
The essence of this claim is that Zimbabweans should stop thinking and stop improving the Copac draft of July 18 despite the fact that everyone who has read it has described it as "shoddy", "sloppy" and "imperfect".
To suggest that amending such a draft in order to improve it risks causing political violence such as witnessed in 2008 is the height of folly which demonstrates not just the desperation of the MDC formations but also their violent streak that is inherent to their political DNA.
The sick message from the MDC forma­tions is that ideas are dangerous!
The fifth fallacy is that making amend­ments to the July 18 Copac draft is tantamount to opposing or negating the proposed constitutional referendum or to preferring to have the forthcoming general election run on the basis of the current Constitution. Again, there is no logic in this false presumption.
Quite clearly, the fact that Zanu-PF has taken a lot of time and effort to review and improve the July 18 Copac draft demon­strates an obvious desire to have a new and permanent constitution based on constitutional principles and not personal issues or election manifestos.
If this desire to improve and move the process forward was not there, the easier thing to do would be simply to oppose or reject the July 18 Copac draft without offering any amendments to improve it.
It is against the background of these falla­cies that the July 18 Copac draft has been positively amended by Zanu-PF to make it a truly people's draft.
Among other things, the amendments that have been incorporated into the draft ensure that the views of the people gathered during the Copac outreach programme are respected by:
(1) affirming Zimbabwe is a unitary, democratic and sovereign republic with decentralisation - not devolution but decentralisation supported by at least 71% during the Copac outreach exercise - at the grassroots and based on the supremacy of the people who are the makers of their own constitution as their supreme law;
(2) entrenching and securing the gains of the Third Chimurenga so that the historic land reform programme is beyond reversal;
(3) requiring the executive, legislature, judici­ary and independent commissions and therefore all State institutions and agencies at all levels to promote and defend the values and ideals of the liberation struggle as their constitutional duty and obligation;
(4) specifically prohibiting homosexuality to protect Zimbabweans traditional, moral and religious values;
(5) prohibiting dual citizenship in respect of citizens by descent or registration;
(6) enshrining a progressive Bill of Rights whose judicial interpretation must be based on Zimbabwean law without undue external influences or references to a theoretical and thus non-existent so-called "open and just democratic society" which is imaginary and has no precedence in countries like the United States which claims to be a model constitutional democracy;
(7) giving justiciable rights to the youth - that is to say people between the age of 15 and 35 and who constitute not just the majority in our country but who are in fact the permanent future of our society - among other things to access appropriate education and training, employment and other avenues of economic empowerment and to be protected from harmful cultural practices;
(8) providing for justiciable - meaning enforceable - rights to economic empow­erment and suitable welfare for veterans of the liberation struggle who include war veterans, political prisoners, detainees, and restrictees and war collaborators;
(9) requiring all State institutions and agencies of Government at every level to facilitate and take measures to empower the indigenous people of Zimbabwe, among other things, carry out affirmative actions to redress past imbalances in the economy by implementing indigenisation and economic empower­ment programmes and policies to benefit the youth, women, the elderly, persons with disabilities, veterans of the liberation struggle and local communities through decentralisation;
(10) providing for a separation of powers between the executive, legislature and judiciary with real and meaningful checks and balances;
(11) preserving Zimbabwe's national security and institutional stability by deepening the pillars of the public service and security organs of the State which are widely respected around the world through the United Nations system; and
(12) recognising the institution, status and role of traditional leadership according to customary law, including providing that in addition to their jurisdiction and control over communal land, an Act of Parliament may also provide for the exercise of jurisdic­tion by traditional leaders over other agricultural land.
As examples, these 12 key features of the amendments incorporated by Zanu-PF have indeed improved, enhanced and enriched the July 18 Copac draft and made it a permanent people's draft constitution worthy of our country's heroic history, present and future without reference to any particular individual, any particular political party or any particular election under the pretext of any particular transition.
This follows Zanu-PF's official confirma­tion at an ordinary session of the Politburo yesterday of its amendments to the so-called final draft constitution prepared by Copac's management committee made up of GPA negotiators.
The thorough and substantive amendments from Zanu-PF entirely based on the views of the people gathered during the Copac outreach programme and sanctioned by the party's Politburo after four separate and long meetings totalling some 50-odd hours of meticulous work have essentially enhanced and enriched the Copac draft produced by GPA negotiators on July 18 by improving it from a committee draft to a people's draft. A committee's draft has now become a national people's draft.
That the Copac draft has now been tremendously improved, enhanced and enriched by the amendments incorporated by Zanu-PF to the unquestionable point of producing a people's draft is self-evident to anyone who has read the latest amended draft, including the likes of Welshman Ncube, Tendai Biti and Douglas Mwonzora who - while pretending to be angry in public during the day by making foolish statements that they will most certainly regret sooner than later - have at night confided to many in private conversations, that can be corroborated if they dare say "nyo", something to the effect that they in fact find most of the amendments "to be thoughtful, serious, compelling and expose the grey areas of the July 18 Copac draft because the amendments reflect the views of the people and are based on sound constitutional principles that are permanent and neither temporary nor opportunistic".
This truth, which is about to prevail because it is inescapable, has not yet come out to allow for a serious focus on constitu­tional issues such as the 12 listed below due to the fact that it is currently being oppressed and suppressed by five pathetic fallacies.
The first fallacy which has been spread all over the place, including within Sadc circles by Morgan Tsvangirai particularly in countries like Botswana and Tanzania, is that the July 18 Copac draft is final and cannot be amended allegedly because each page was signed or initialled by each of the members of the Copac management committee.
But this is, of course, a fallacy which can only be believed by dunderheads because the management committee of Copac is a supervisory structure created by GPA principals and, as such, it cannot be superior to its creators to the point of binding them or tying their hands. That proposition is non­sensical.
The GPA negotiators appended their sig­natures to authenticate their work and not to pre-empt their principals.
In any event, it is also now clear that the Copac management erred by turning itself into a drafting committee when it was supposed to be a supervisory committee to oversee but not replace the work of Copac.
This fact is, however, now water under the bridge and life must go on, which is why GPA principals and their political parties have a duty and obligation to review the July 18 Copac draft prepared by its management committee and make amendments if they have any.
That process cannot be avoided except in the heads of those among us who are given to truancy and delinquency.
The second fallacy is that there are now two drafts: One Copac and the other Zanu-PF. Anyone who believes this will believe anything.
The fact is that there is one draft with amendments from Zanu-PF. When you amend something with a view to improving it, you do not create two things but you simply improve the one thing that you have. The Constitution of Zimbabwe has been amended 19 times and those amendments have not meant that we now have several or even 19 constitutions as that proposition would be simply ludicrous.
The factual position in terms of the con­stitution-making process is that the latest Copac draft is entitled, "Copac" The Draft Constitution of Zimbabwe, 18 July 2012, Incorporating Approved Zanu-PF Amend­ment".
This is the only draft that everyone involved in the constitution-making process is currently reviewing or studying. There can be no going back from this draft. Any way forward must necessarily be an improvement of this draft. In the circumstances, the fallacy of two drafts is just prop­aganda.
It is shameful that this is coming from lawyers like Welshman Ncube who are expected to know better.
This fallacy is being peddled by those who are personalising constitutional issues in the vain hope that, because they have promised their foreign handlers and some Sadc leaders to use Copac to effect regime change and succession politics, they can get away with deliberately producing a defective or imperfect constitution with no exec­utive powers and yet in terms of the July 18 Copac draft the President is directly elected by the people to exercise executive functions on their behalf.
You cannot have a non-executive President who is directly elected by the people upon whom executive authority is vested. For the same reason you cannot compare the executive powers of a president who is elected by Parliament, as is currently the case in South Africa, with those of one who is directly elected by the people.
But Zimbabweans will be pleased that, unlike the two MDC formations which are showing a fatal determination to abuse the Copac draft constitution by turning it into their election manifestos in pursuit of their so-called transitional objectives of grabbing power outside the electoral process with what they hope will be help from Sadc, Zanu-PF has lived up to its revolutionary responsibility as a party of liberation to ensure that the Copac process produces a permanent constitution based on the views of the people gathered during the Copac outreach programme.
A president who is directly elected by the people, such as the American president, must of course have executive powers and he must be able to exercise those powers through and not under a cabinet that he chooses to assist him and not to supervise or constrain him.
This is an indubitable fact. The proposi­tion that the constitution of Zimbabwe should be stripped of its necessary executive powers and be temporarily turned into a rubber-stamping clerical office in order to personally deal with President Mugabe for transitional purposes is not just a fallacy unworthy of our heroic country but is also constitutional rubbish and the masses are now ready to expose this rubbish for what it is.
The Copac draft constitution prepared by the Copac management committee on July 18 provides for a directly elected executive president and not for a glorified clerk.
The amendments incorporated by Zanu-PF merely give honest effect to this fact as a permanent and not temporary arrangement designed for any particular individual today or tomorrow. In 2000, Welshman Ncube and company peddled the same lie about President Mugabe vis-à-vis the Constitu­tional Commission draft around which they framed their "yellow card" election cam­paign for the 2000 parliamentary election and if they think they will get away with that again then they are joking and their joke is not funny.
The fourth fallacy that both MDC formations have been barking out is that making amendments to the July 18 draft prepared by the Copac management committee is tantamount to seeking a repeat of the 2008 post-election violence.
Frankly, this is a shocking claim which proves the dishonesty of those peddling the claim.
The essence of this claim is that Zimbabweans should stop thinking and stop improving the Copac draft of July 18 despite the fact that everyone who has read it has described it as "shoddy", "sloppy" and "imperfect".
To suggest that amending such a draft in order to improve it risks causing political violence such as witnessed in 2008 is the height of folly which demonstrates not just the desperation of the MDC formations but also their violent streak that is inherent to their political DNA.
The sick message from the MDC forma­tions is that ideas are dangerous!
The fifth fallacy is that making amend­ments to the July 18 Copac draft is tantamount to opposing or negating the proposed constitutional referendum or to preferring to have the forthcoming general election run on the basis of the current Constitution. Again, there is no logic in this false presumption.
Quite clearly, the fact that Zanu-PF has taken a lot of time and effort to review and improve the July 18 Copac draft demon­strates an obvious desire to have a new and permanent constitution based on constitutional principles and not personal issues or election manifestos.
If this desire to improve and move the process forward was not there, the easier thing to do would be simply to oppose or reject the July 18 Copac draft without offering any amendments to improve it.
It is against the background of these falla­cies that the July 18 Copac draft has been positively amended by Zanu-PF to make it a truly people's draft.
Among other things, the amendments that have been incorporated into the draft ensure that the views of the people gathered during the Copac outreach programme are respected by:
(1) affirming Zimbabwe is a unitary, democratic and sovereign republic with decentralisation - not devolution but decentralisation supported by at least 71% during the Copac outreach exercise - at the grassroots and based on the supremacy of the people who are the makers of their own constitution as their supreme law;
(2) entrenching and securing the gains of the Third Chimurenga so that the historic land reform programme is beyond reversal;
(3) requiring the executive, legislature, judici­ary and independent commissions and therefore all State institutions and agencies at all levels to promote and defend the values and ideals of the liberation struggle as their constitutional duty and obligation;
(4) specifically prohibiting homosexuality to protect Zimbabweans traditional, moral and religious values;
(5) prohibiting dual citizenship in respect of citizens by descent or registration;
(6) enshrining a progressive Bill of Rights whose judicial interpretation must be based on Zimbabwean law without undue external influences or references to a theoretical and thus non-existent so-called "open and just democratic society" which is imaginary and has no precedence in countries like the United States which claims to be a model constitutional democracy;
(7) giving justiciable rights to the youth - that is to say people between the age of 15 and 35 and who constitute not just the majority in our country but who are in fact the permanent future of our society - among other things to access appropriate education and training, employment and other avenues of economic empowerment and to be protected from harmful cultural practices;
(8) providing for justiciable - meaning enforceable - rights to economic empow­erment and suitable welfare for veterans of the liberation struggle who include war veterans, political prisoners, detainees, and restrictees and war collaborators;
(9) requiring all State institutions and agencies of Government at every level to facilitate and take measures to empower the indigenous people of Zimbabwe, among other things, carry out affirmative actions to redress past imbalances in the economy by implementing indigenisation and economic empower­ment programmes and policies to benefit the youth, women, the elderly, persons with disabilities, veterans of the liberation struggle and local communities through decentralisation;
(10) providing for a separation of powers between the executive, legislature and judiciary with real and meaningful checks and balances;
(11) preserving Zimbabwe's national security and institutional stability by deepening the pillars of the public service and security organs of the State which are widely respected around the world through the United Nations system; and
(12) recognising the institution, status and role of traditional leadership according to customary law, including providing that in addition to their jurisdiction and control over communal land, an Act of Parliament may also provide for the exercise of jurisdic­tion by traditional leaders over other agricultural land.
As examples, these 12 key features of the amendments incorporated by Zanu-PF have indeed improved, enhanced and enriched the July 18 Copac draft and made it a permanent people's draft constitution worthy of our country's heroic history, present and future without reference to any particular individual, any particular political party or any particular election under the pretext of any particular transition.
Source - Zimpapers
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