Copac final draft: A study in mischief

If the truth were to be told without fear or favour - something which has become an endangered species in these treacherous GPA times that are heavily influenced by outsiders some of whom like the EU are now shamelessly using their evil and illegal sanctions to force a referendum - it would be that the final Copac draft constitution released last week by the GPA negotiators who also double as Copac's management committee is a wrong constitution, crafted by wrong people for the wrong reasons at the wrong time.

The most telling evidence of this is the systematic weakening of state institutions in general and in particular the total and unmitigated onslaught on the executive arm of Government by weakening the executive powers of the President in a manner that has no precedence in any constitutional democracy with an executive president who is directly elected.  

This is a make or break issue along with three or so others and it needs to be critically unpacked with reference to specific clauses in the draft to make bare the self-evident mischief that must be checked by all means necessary if Zimbabwe is to survive as a unitary, sovereign and democratic republic made possible by a heroic liberation war whose values, objectives and legacy must be indelible in any constitution or fundamental law of the land.

But first it is notable that the fatal shortcomings of Copac's final draft constitution apparently emanate from the undeniable, but yet unacknowledged fact that some of the dominant or leading players behind the crafting of the final Copac draft constitution are bitter individuals with deep-seated personal grievances who have allowed their chronic personal prejudices to blind and corrupt their understanding of impersonal constitutional issues to the point of drafting a subversive mishmash of contradictions and outright absurdities and presenting them as a draft constitution.

More specifically in the same vein, it is also apparent from reading the draft that its crafters have taken way too far beyond rationality and acceptable norms their unhidden personal issues with President Mugabe, the Defence Forces Commander General Constantine Chiwenga, Commissioner General of Police Augustine Chihuri, Attorney General Johannes Tomana, President of the Council of Chiefs Mambo Fortune Charumbira and a host of unwanted permanent secretaries.     

While there are many instances throughout the draft which capture the shocking and rather juvenile and thus intolerable personalisation of issues in the final Copac draft prepared by the management committee of GPA negotiators, two of them standout as examples.

The first instance of such gross personalisation clearly arising from the hatred of a handful of senior officials in the public and national security service is the indiscriminate application of the political principle of term limits to include professional and career ranks in an unprecedented manner that not only risks destroying professionalism in the public service, but also risks subverting the service itself by destabilising it in ways that are beyond imagination.

In the same connection, the second instance arising from the hatred of President Mugabe is the destruction of the executive branch of Government whose essential powers are stripped with the consequence of leaving the branch as an utterly meaningless and useless skeleton with no beef.

The implication of these two examples becomes quite ominous when you take into account the fact that the public service and related arms of the State such as the defence and police forces and the attorney general's office are inextricably connected to the efficiency and effectiveness of the executive branch such that using the constitution to simultaneously weaken both these arms of the public service and the executive powers of the President can only be calamitous.

Here are specific examples of these two instances. In Chapter 10 of the final Copac draft Clause 10.7(2) provides that "The term of a Permanent Secretary is a period of up to five years and is renewable once only subject to competence, performance and delivery".  

Under Chapter 11 Clause 11.11(3) stipulates that "Commanders of the Defence Forces and Commanders of services of Defence Forces, are appointed for a term of not more than five years, and a person must not serve in any one of those offices for more than two terms". Clause 11.16(4) of the same chapter says "The Commissioner General of Police is appointed for a five-year term which may be renewed once" and under Clause 11.21(a) "A person in command or control of an intelligence service must be appointed by the President for a five-year term which may be renewed once" while under Clause 11.23(2) "The Commissioner-General of the Correctional (Prisons) Service is appointed for a five-year term which may be renewed once".

Chapter 13 controversially creates a new office of the National Prosecuting Authority uncreatively lifted from the uncertain South African constitution and under Clause 13.6 (5) "The term of office of the Prosecutor General is a period of six years and is renewable for one further such term". It is instructive that while other offices have been given five-year terms, this one gets six years with no obvious constitutional explanation or justification.

It is also notable that the Attorney General whose office is provided in Clause 5.27 is stripped of prosecutorial powers and curiously if not tellingly has no term limits save that Clause 5.28 provides that "The President may at any time remove the Attorney-General from office". If this is not a personalised reaction to Johannes Tomana the individual then we are all on planet Mars today.   

The President and Deputy President of every Council of Chiefs is not spared of the constitutional mishmash of term limits since according to Clause 15.6(6) is "elected for a term of five-years and is eligible for re-election for one further term".

In the main, the foregoing is very shocking to say the least and one does not have to be a rocket scientist to figure out, for example, which permanent secretaries, and service chiefs are being targeted for cheap political reasons that have nothing to do with constitutional considerations. The GPA outstanding issues in general and those relating to security sector reform have found expression in the Copac draft prepared by GPA negotiators and they should be joking if they think their folly will be entertained willy nilly just like that.

While beerhall constitutional experts will certainly argue that placing term limits on public administrators is a constitutional principle or even a constitutional matter, the indisputable fact is that it is not. The two conceptual pillars of the state are politics and administration.

On the one hand politics is defined and constitutionally regulated as it is about power: how it is gained, how it is exercised and how it is lost. On other hand, administration is about skill or science which cannot be defined and regulated by a constitution. While a constitution can and should place limits to the acquisition and exercise of political power, the logic of term limits does not at apply to public administration which is a career based on professional and not constitutional considerations. That is why there is no democratic or civilised constitution anywhere in the world which places term limits on career public servants.

In any event all these term limits have no basis whatsoever in the views of the people expressed during the Copac outreach exercise and with no precedence in the earlier first draft produced by Copac co-chairpersons on April 22, 2012. So who has conjured up these term limits and for what constitutional purpose beyond personalised political interests of the moment?

If the foregoing is bad then the attack on the executive powers of the President is worse. Zimbabweans would have noticed a recent trend by the likes of Tendai Biti, Nelson Chamisa and indeed Morgan Tsvangirai falling on each other to shower President Mugabe with all sorts of Machiavellian praises. In a recent Sunday Mail interview Biti went as far as describing President Mugabe as "Zimbabwe".

There are two notable things about this. One is that if any Zanu-PF member describes President Mugabe in the same way as Biti did, they are politically lynched and there is a lot of evidence of that in the past. The other notable thing is that apparently, the purported praise of President Mugabe from the likes of Biti is Machiavellianly designed to cover up some very sinister things being done on the constitutional front against the executive branch of Government.

Clause 5.1(1) of the final Copac draft says "Executive authority derives from the people of Zimbabwe and must be exercised in accordance with this constitution" and Clause 5.1(2) provides that "The executive authority of Zimbabwe vests in the President and the Cabinet".

The two provisions are joined by the fact that the President is directly elected. Despite this fact, the powers given to the President by the Copac draft with respect to the making of key appointments and the making of key Cabinet decisions are not executive, but are entirely clerical and they have the effect of weakening the executive branch of Government in ways that make it an unequal partner with the legislature and judiciary in terms of the all-important concept of the separation of powers.

In terms of the general exercise of executive powers, there are two key provisions in the draft which expose the chicanery at play. Clause 5.3(a) provides that "The President must uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all other laws are faithfully observed". This provision is at odds with Clause 6.4(2) in Chapter six dealing with the legislature which says that "Parliament has the power to ensure that the provisions of this constitution are upheld and that all institutions and agencies of the State and Government act constitutionally and in the national interest".

This is a direct attack on the President's powers and in any case Parliament cannot ensure what is proclaimed in this clause without the enforcement powers that belong to the executive branch of government.

Then what is worse is that in Clause 5.23(6) the draft gives the Cabinet veto powers over the President who is directly elected and who appoints that Cabinet by providing that other than in the making or dismissal of ministerial appointments and assignment of functions thereto or appointment of persons to constitutional offices "In exercise of his or her (policy) functions, the President must act on the advice of the Cabinet".

According to Clause 18.22(b) the authority that is required to act on the advice of any other person is "obliged to follow the advice tendered".  This is shocking in so far as it relates to the executive functions of the President outlined in Clause 5.23(1)(2) as opposed to Clause 5.23(3) which specifically deal with the responsibilities of the Cabinet. Surely with respect to the executive functions of the President, Cabinet should recommend without obliging the President in one way or the other because the powers in question belong to a directly elected President unlike, for example, the South African president who is elected not by the people but by Parliament.

Lastly in terms of the final Copac draft the President is reduced to a mere spectator in the appointment of members of the so-called independent commissions established in Chapter 12 which include the Electoral Commission, the Zimbabwe Human Rights Commission, the Zimbabwe Gender Commission, the Zimbabwe Media Commission and the National Peace and Reconciliation Commission.

Members of these commissions are effectively chosen by Parliament and the President merely picks from a predetermined list. The same applies to members of "institutions to combat corruption and crime" established under chapter 13. The situation is worse when in the appointment of judges which in terms of Clause 8.19 is done by the Judicial Services Commission which invites "the President and the public to make nominations" before submitting a list of three from which the President must appoint. There is no single example of a constitutional democracy with a directly elected president where this nonsense is practised. All this did not come from the views of the people. Where is it coming from and why?

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Professor Jonathan Moyo is a Zanu-PF Politburo member, Tsholotsho North legislator and former Minister of Media, Information and Publicity.