Opinion / Columnist
Reality Check For Zanu-PF
04 Apr 2012 at 05:02hrs | Views
The three lead drafters of the Constitution Justice Moses Chinhengo, Mrs Priscilla Madzonga, and Mr Brian Crozier have started work on the next draft (possibly final) of the new constitution, with COPAC envisaging the drafters' current task being completed by April 11.
Still working at an undisclosed venue, they will be working with the COPAC Co-Chairs' Forum which will also be meeting separately from the drafters, but at the same venue, to examine the drafters' work in installments as each Chapter is completed. This enables exchanges of views and facilitates adjustments to the documents as work on the draft proceeds.
The Co-Chairs' Forum consists of the three COPAC co-chairpersons and three expert advisers, one each nominated by the three GPA political parties. The expert advisors have already been working on framing the constitutional principles and framework to guide the work of the lead drafters and assisting in reviewing the drafts produced by the drafters.
They are Alex Magaisa, a University of Kent law lecturer (nominated by MDC), Jacob Mudenda a Bulawayo lawyer, businessman and former Zanu-PF governor for Matabeleland North (nominated by Zanu-PF, and Josphat Tshuma, a legal practitioner in private practice in Bulawayo and a former president of the Law Society of Zimbabwe who oversaw LSZ's production of a Model Constitution for Zimbabwe in October 2010 (nominated by the splinter MDC).
The drafters are tasked with producing COPAC's final draft including the issues on which, because COPAC had not yet reached consensus on them, it had not been possible for instructions to be given to the drafters.
Agreement has now been reached on the the following issues: Death Penalty - limiting it to be applicable strictly to "aggravated murder"; Land Tenure - no blanket provision to make all land in the country State Land - leaving land that has already been gazetted and designated under the land reform programme to remain as State land, with 99-year leases, but no title deeds; Appointment of Service Chiefs will be subject to Parliamentary approval - not just the President; Presidential term limits of no more than two terms, but excluding President Mugabe.
Some issues are still to be agreed on including Dual Citizenship, Compensation for Land Expropriated from those who bought land after Independence, having first obtained a Government "certificate of no present interest", Devolved Government; the role of the chiefs and their representation in the Senate; whether there should be an Independent Prosecuting Authority - distinct from the Attorney-General, thereby restricting the Attorney-General's role to that of chief Government legal adviser; Structure of the Executive, i.e, whether there should be a non-Executive President and a Prime Minister, or an Executive President; and whether there should be one or two Vice-Presidents.
Next Steps in the Drafting Process
If these issues are not resolved before 11th April, i.e. before the lead drafters' current engagement (contract) comes to an end, there will be a second incomplete draft to come out of the process and this second draft is likely to go to the principals for finalisation.
The lead drafters would most likely have to be called in again to incorporate the principals' decisions in a third and hopefully final draft. The drafters may again be involved in "fine-tuning" or possibly coming up with alternative provisions catering for the various positions that have been put forward for consideration on outstanding issues.
That arrangement would probably allow for later adoption of whichever of the alternative provisions fits the positions eventually agreed, without involving the drafters again, but most likely would bring the drafters in again to finalise what would have been agreed.
Even after the Second All Stakeholders' Conference or after the post-conference-but-pre-Referendum debate on the draft in Parliament, further tinkering may be needed â€" which would mean bringing back the lead drafters before the draft is ready for gazetting prior to the Referendum.
Will the Constitution be Ready Before Elections?
MDC COPAC co-chair Douglas Mwonzora, rather optimistically, has said that COPAC should now be able to complete the draft, including fine-tuning, after the current exercise up to 11 April, by the end of April, and the Second All-Stakeholders' Conference could be held in May, and the Referendum in September, possibly earlier if everything goes smoothly - i.e. with speedy agreement between the parties on the outstanding issues and no hitches over getting the final draft approved by the principals, then translated into all vernacular languages and Braille, and printed in large numbers for distribution to participants in the Second All-Stakeholders' Conference - in time to permit them to study it and consult their constituencies before the Conference itself.
The co-chairs have also mentioned the possibility of a mini-outreach before the Second All-Stakeholders' Conference, to explain the draft and help people familiarise themselves with it. This is deemed desirable judging by the reaction to the leaked drafts which revealed that some citizens were far too ready to misconstrue provisions or to read them out of context.
President Mugabe's Different Time Frame: Referendum in May!
On March 28 Zany-PF COPAC co-chairperson Munyaradzi Paul Mangwana reported to his Politburo, and afterwards party spokesman Rugare Gumbo said Zanu-PF negotiators, Patrick Chinamasa and Nicholas Goche, had been given until Friday to clear the parked issues. Failing that, the principals would take over. The Politburo would meet again in extraordinary session on Wednesday 4th April (today) to "decide once and for all on the constitution".
On Friday, at a meeting of Zanu-PF Central Committee, President Mugabe, in remarks broadcast later on television and radio, reiterated his insistence that the elections must be held this year, with or without a new constitution, and he said that the Referendum must be in May. If COPAC could not finish the job in time, he insisted, the principals would do it for them, and if the Referendum returned a No vote, there would be elections under the Lancaster House Constitution, meaning the present Constitution without Constitution Amendment No. 19 which underpins the existence of the Inclusive Government.
Problems Raised by the President's Declaration
The President's timetable sets targets impossible to reconcile with Article 6 of the GPA â€" and impossible to achieve as it does not take into account the following problems;
For a Referendum in May: even if the principals decide to intervene and try to finish the job themselves, it is difficult to see them doing so in time for a May Referendum; the timetable does not allow for the holding of the Second All-Stakeholders' Conference required by Article 6, nor does it envisage the ensuing debate in Parliament, which in any event is in recess until mid-May;
It overlooks the need to gazette the final draft before a referendum; there will not be enough time for the country to examine the draft after its translation into vernacular languages, and Braille, meaning that voters will not have long enough to be properly informed of the merits and demerits of the draft placed before them for adoption or rejection;
No heed is paid to the need to amend or replace the current, out-of-date Referendums Act â€" or the difficulties of doing that when the necessary Bill has not yet been approved by Cabinet;
And the voters roll is still not acceptable to civil society, nor to the MDC and its splinter party â€" despite the Registrar-General's recent claims that it is perfect.
For a General Election: an election before proper implementation of the GPA would go against repeated SADC Summit resolutions, also in that it would be before the Zimbabwe political playing field has been leveled by making the reforms necessary to avoid a repetition of the 2008 election violence;
Both MDCs have said they would not take part without a fair environment, and an election without them would be a sham in the eyes of the region and the world;
And if the President breaks the GPA, ends the Inclusive Government and calls elections, he may forfeit recognition as President by SADC. If he does not break the GPA and it continues in existence, Schedule 8 to the Constitution (Ammendment 19) will remain in force, meaning that the President cannot legally call for elections without the consent of the Prime Minister;
The Treasury has not budgeted for an election this year, only for the Referendum. If the funds come from elsewhere than the fiscus [e.g. from diamond revenues] this would add fuel to the criticism that elections are always skewed in favour of the incumbent by the use of State resources for re-election tinkering, which would affect the credibility of the election.
Zimbabwe Electoral Commission (ZEC) would have to run the Referendum, but the Electoral Act has still not been amended to flesh out its terms of reference to enable it do so properly;
If the GPA is abandoned and ZEC is called on to run a general election under the Lancaster House Constitution (amended 19 times) and an unamended Electoral Act, it may find it difficult to organise a credible election. (ZEC's existence as an independent constitutional commission does not depend on the continued existence of the GPA. Although the present constitutional provisions for ZEC were added by Constitutional Amendment No. 19 ahead of the formation of the Inclusive Government, those provisions will remain in force if the GPA comes to a premature end before the adoption of a new constitution. Only Schedule 8 to the Constitution, which provides for the structure of the Inclusive Government, will fall away if the GPA comes to an end.)
The President has been declaring that he wants immediate elections from well before the end of last year. This most recent declaration, although forcefully made, may still be impossible to implement, but it is likely to serve the useful purpose of getting COPAC to avoid any more unnecessary delays .
But after the debacle of the First Stakeholders' Conference, one would hope that the upcoming Second All Stakeholders' Conference, a vital part of the constitution-making process, will have adequate preparation and not be unduly rushed.
Also, people must have a chance to study the final gazetted version thoroughly before the Referendum. It would be sad if, after all the seemingly preventable delays that have dragged the process on for three years, rather than the one year it should have taken, the important last stages were to be skimped.
-----------------------------
Published in association with Veritas, a Constitutional Affairs NGO in Zimbabwe.
Still working at an undisclosed venue, they will be working with the COPAC Co-Chairs' Forum which will also be meeting separately from the drafters, but at the same venue, to examine the drafters' work in installments as each Chapter is completed. This enables exchanges of views and facilitates adjustments to the documents as work on the draft proceeds.
The Co-Chairs' Forum consists of the three COPAC co-chairpersons and three expert advisers, one each nominated by the three GPA political parties. The expert advisors have already been working on framing the constitutional principles and framework to guide the work of the lead drafters and assisting in reviewing the drafts produced by the drafters.
They are Alex Magaisa, a University of Kent law lecturer (nominated by MDC), Jacob Mudenda a Bulawayo lawyer, businessman and former Zanu-PF governor for Matabeleland North (nominated by Zanu-PF, and Josphat Tshuma, a legal practitioner in private practice in Bulawayo and a former president of the Law Society of Zimbabwe who oversaw LSZ's production of a Model Constitution for Zimbabwe in October 2010 (nominated by the splinter MDC).
The drafters are tasked with producing COPAC's final draft including the issues on which, because COPAC had not yet reached consensus on them, it had not been possible for instructions to be given to the drafters.
Agreement has now been reached on the the following issues: Death Penalty - limiting it to be applicable strictly to "aggravated murder"; Land Tenure - no blanket provision to make all land in the country State Land - leaving land that has already been gazetted and designated under the land reform programme to remain as State land, with 99-year leases, but no title deeds; Appointment of Service Chiefs will be subject to Parliamentary approval - not just the President; Presidential term limits of no more than two terms, but excluding President Mugabe.
Some issues are still to be agreed on including Dual Citizenship, Compensation for Land Expropriated from those who bought land after Independence, having first obtained a Government "certificate of no present interest", Devolved Government; the role of the chiefs and their representation in the Senate; whether there should be an Independent Prosecuting Authority - distinct from the Attorney-General, thereby restricting the Attorney-General's role to that of chief Government legal adviser; Structure of the Executive, i.e, whether there should be a non-Executive President and a Prime Minister, or an Executive President; and whether there should be one or two Vice-Presidents.
Next Steps in the Drafting Process
If these issues are not resolved before 11th April, i.e. before the lead drafters' current engagement (contract) comes to an end, there will be a second incomplete draft to come out of the process and this second draft is likely to go to the principals for finalisation.
The lead drafters would most likely have to be called in again to incorporate the principals' decisions in a third and hopefully final draft. The drafters may again be involved in "fine-tuning" or possibly coming up with alternative provisions catering for the various positions that have been put forward for consideration on outstanding issues.
That arrangement would probably allow for later adoption of whichever of the alternative provisions fits the positions eventually agreed, without involving the drafters again, but most likely would bring the drafters in again to finalise what would have been agreed.
Even after the Second All Stakeholders' Conference or after the post-conference-but-pre-Referendum debate on the draft in Parliament, further tinkering may be needed â€" which would mean bringing back the lead drafters before the draft is ready for gazetting prior to the Referendum.
Will the Constitution be Ready Before Elections?
MDC COPAC co-chair Douglas Mwonzora, rather optimistically, has said that COPAC should now be able to complete the draft, including fine-tuning, after the current exercise up to 11 April, by the end of April, and the Second All-Stakeholders' Conference could be held in May, and the Referendum in September, possibly earlier if everything goes smoothly - i.e. with speedy agreement between the parties on the outstanding issues and no hitches over getting the final draft approved by the principals, then translated into all vernacular languages and Braille, and printed in large numbers for distribution to participants in the Second All-Stakeholders' Conference - in time to permit them to study it and consult their constituencies before the Conference itself.
The co-chairs have also mentioned the possibility of a mini-outreach before the Second All-Stakeholders' Conference, to explain the draft and help people familiarise themselves with it. This is deemed desirable judging by the reaction to the leaked drafts which revealed that some citizens were far too ready to misconstrue provisions or to read them out of context.
President Mugabe's Different Time Frame: Referendum in May!
On March 28 Zany-PF COPAC co-chairperson Munyaradzi Paul Mangwana reported to his Politburo, and afterwards party spokesman Rugare Gumbo said Zanu-PF negotiators, Patrick Chinamasa and Nicholas Goche, had been given until Friday to clear the parked issues. Failing that, the principals would take over. The Politburo would meet again in extraordinary session on Wednesday 4th April (today) to "decide once and for all on the constitution".
On Friday, at a meeting of Zanu-PF Central Committee, President Mugabe, in remarks broadcast later on television and radio, reiterated his insistence that the elections must be held this year, with or without a new constitution, and he said that the Referendum must be in May. If COPAC could not finish the job in time, he insisted, the principals would do it for them, and if the Referendum returned a No vote, there would be elections under the Lancaster House Constitution, meaning the present Constitution without Constitution Amendment No. 19 which underpins the existence of the Inclusive Government.
Problems Raised by the President's Declaration
The President's timetable sets targets impossible to reconcile with Article 6 of the GPA â€" and impossible to achieve as it does not take into account the following problems;
For a Referendum in May: even if the principals decide to intervene and try to finish the job themselves, it is difficult to see them doing so in time for a May Referendum; the timetable does not allow for the holding of the Second All-Stakeholders' Conference required by Article 6, nor does it envisage the ensuing debate in Parliament, which in any event is in recess until mid-May;
It overlooks the need to gazette the final draft before a referendum; there will not be enough time for the country to examine the draft after its translation into vernacular languages, and Braille, meaning that voters will not have long enough to be properly informed of the merits and demerits of the draft placed before them for adoption or rejection;
No heed is paid to the need to amend or replace the current, out-of-date Referendums Act â€" or the difficulties of doing that when the necessary Bill has not yet been approved by Cabinet;
And the voters roll is still not acceptable to civil society, nor to the MDC and its splinter party â€" despite the Registrar-General's recent claims that it is perfect.
For a General Election: an election before proper implementation of the GPA would go against repeated SADC Summit resolutions, also in that it would be before the Zimbabwe political playing field has been leveled by making the reforms necessary to avoid a repetition of the 2008 election violence;
Both MDCs have said they would not take part without a fair environment, and an election without them would be a sham in the eyes of the region and the world;
And if the President breaks the GPA, ends the Inclusive Government and calls elections, he may forfeit recognition as President by SADC. If he does not break the GPA and it continues in existence, Schedule 8 to the Constitution (Ammendment 19) will remain in force, meaning that the President cannot legally call for elections without the consent of the Prime Minister;
The Treasury has not budgeted for an election this year, only for the Referendum. If the funds come from elsewhere than the fiscus [e.g. from diamond revenues] this would add fuel to the criticism that elections are always skewed in favour of the incumbent by the use of State resources for re-election tinkering, which would affect the credibility of the election.
Zimbabwe Electoral Commission (ZEC) would have to run the Referendum, but the Electoral Act has still not been amended to flesh out its terms of reference to enable it do so properly;
If the GPA is abandoned and ZEC is called on to run a general election under the Lancaster House Constitution (amended 19 times) and an unamended Electoral Act, it may find it difficult to organise a credible election. (ZEC's existence as an independent constitutional commission does not depend on the continued existence of the GPA. Although the present constitutional provisions for ZEC were added by Constitutional Amendment No. 19 ahead of the formation of the Inclusive Government, those provisions will remain in force if the GPA comes to a premature end before the adoption of a new constitution. Only Schedule 8 to the Constitution, which provides for the structure of the Inclusive Government, will fall away if the GPA comes to an end.)
The President has been declaring that he wants immediate elections from well before the end of last year. This most recent declaration, although forcefully made, may still be impossible to implement, but it is likely to serve the useful purpose of getting COPAC to avoid any more unnecessary delays .
But after the debacle of the First Stakeholders' Conference, one would hope that the upcoming Second All Stakeholders' Conference, a vital part of the constitution-making process, will have adequate preparation and not be unduly rushed.
Also, people must have a chance to study the final gazetted version thoroughly before the Referendum. It would be sad if, after all the seemingly preventable delays that have dragged the process on for three years, rather than the one year it should have taken, the important last stages were to be skimped.
-----------------------------
Published in association with Veritas, a Constitutional Affairs NGO in Zimbabwe.
Source - Veritas
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