Ncube: Principal who tainted Copac draft - Prof Moyo

As the Copac constitution-making process approaches what is increasingly looking like a troubled sunset with no dawn, the two MDC formations - whose open secret all along has been that they see the process only as an elec­toral strategy specifically intended to produce a transitional document - have gone viral with two astonishingly confused and confus­ing propositions that are crying out for clarity about the status and fate of Copac's final draft constitution crafted by GPA negotiators and released last month.

The first proposition being peddled by the two MDC formations is that the draft crafted by the Copac management committee whose core members are also GPA negotiators is final and thus not subject to further negotiation or amendment allegedly because the negotiators signed off the whole thing and initialled every page with the alleged mandate of their respec­tive political parties that make up the Inclusive Government. Equally doing the same rounds from the same MDC formations and their donor, NGO and media mouthpieces is the second proposition that the same allegedly "final" draft is in fact an "imperfect", "con­tentious", "incomplete" and "shoddy" "com­promise" document.

On July 28, 2012 the MDC-T released a widely circulated Press statement bemoaning what it said was the absence of "some things it wanted included" in the final Copac draft con­stitution while describing the draft as "an incremental gain".
Since then MDC-T spokesperson and Copac co-chairperson Douglas Mwonzora has been at pains to shout at anyone with ears claims that the admittedly "imperfect" and "incomplete" draft constitution should be taken "as is" to the so-called second all-stake­holder conference on grounds that it was agreed by GPA negotiators in the Copac man­agement committee and is therefore "final".

And on August 1, 2012 Welshman Ncube parroted the MDC-T view that the "shoddy" Copac draft is "an incremental gain" telling the media that his MDC is accepting and endors­ing the draft "as a representation of significant progress in the democratic struggle although it is an imperfect document".
Despite clearly acknowledging that the so-called final Copac draft is in fact an "imperfect document" Welshman Ncube — who still has a very dark cloud hovering over his integrity and originality or lack thereof in legal scholar­ship — further parroted the MDC-T line that the "imperfect document" should be adopted in its flawed and imperfect form claiming that "there will be future struggles or opportunities to relook at the constitution".

He insisted that "we (his MDC) would like to make it clear that we will not allow any other forum or creation of a new one, be it leaders of political parties, so called principals or any other to renegotiate the constitution . . . When the negotiators signed the draft it was a sign that their parties agree to it". But when Welshman Ncube claims, obviously falsely, that "when the negotiators signed the draft it was a sign that their parties agree to it" he is opening the door to growing questions about his own misconduct which corrupted the work of the Copac management committee when it was crafting the controversial draft.

It is a fact that although he is not a member of the management committee which he left in February 2011 after he controversially won a disputed election against Arthur Mutambara to lead his party after which he was replaced by Mzila Ndlovu, Welshman Ncube neverthe­less actively participated in the preparation of the so-called final draft. His participation was unprocedural, highly irregular and warrants an investigation and a report to Sadc.

Having Welshman Ncube, who now calls himself a principal, participating and med­dling in the Copac management committee during the crafting of the so-called

final draft constitution is objectionable in the extreme because it means that one principal among the GPA parties has dirty hands that have con­taminated the entire process. President Mugabe and Prime Minister Tsvangirai did not go down to become GPA negotiators in the Copac management com­mittee as did Welshman Ncube to craft the controversial so-called final Copac draft con­stitution that has been roundly described by all and sundry as shoddy, incomplete, con­tentious, imperfect and not reflecting the views of the people.

Against this background when Welshman Ncube and his party self-indulgently pontifi­cate that the GPA political parties have already negotiated "every paragraph, line, comma and full stop" they are talking absolute crap given the fact that Ncube compromised himself in a big way by participating in the Copac manage­ment committee when he is a political princi­pal. The rubbish about negotiating para­graphs, lines, commas and full stops shows that these guys just don't get it.

So can they tell us if devolution was a para­graph, line, comma or full stop? Is that what they think a constitution is about: paragraphs, lines, commas and full stops? Don't they not know or have they not heard that constitutions are about principles and their consequences on the structure, organisation and manage­ment of the relationship between the state, society and the individual?

Welshman Ncube and his folks should give us a break by putting up or shutting up. In the meantime, what is clear from the foregoing, which neutral Sadc and other observers have found confused and confusing, is that there's something manifestly irrational about the two propositions outlined above in that it boggles the mind as to why something that is roundly being described even by the two MDC forma­tions themselves as "imperfect" and "incom­plete" should nevertheless be taken as "final" and not subject to amendment.

In other words, why must a patently bad draft constitution which has been described as such by everyone who has read it be treated as a good draft constitution and be taken to the second all-stakeholder conference without amendment or improvement? Why?

The MDC formations have told anyone willing to listen to them that they want the draft constitution as part of their election strategy.

They have been open that they see the draft only as a transitional document for elections and not as an enduring or perma­nent document which they say they will do after their so-called transition. The evidence for this is immense. In October 2010 well before the constitution drafting exercise started towards the end of the Copac outreach programme, Prime Minister Tsvangirai addressed a meeting of Harare residents and urged the audience to ". . . attend the Copac meetings that resume in Harare this weekend.

"We want to go to elections next year with a new constitution. After winning that election then we will make sure that the country has a real people-driven constitution with all your views and desires captured".

The Prime Minister repeated his message that a Copac draft constitution is for him and his party an election strategy when just before the start of the Copac constitution drafting exercise which has yielded the current contro­versial draft crafted by Copac's management committee, he was widely quoted by the local and international media saying that "a new constitution for Zimbabwe . . . will be aban­doned as soon as his MDC party wins power" telling the crowd that "this (Copac) constitu­tion is a transitional one, we will write the peo­ple's constitution when we are in power . . ."

And just before that statement, the MDC-T's national organising secretary — Nelson Chamisa — was reported in the media assert­ing that "We (the MDC T) now await the report of the management committee so then you can see the collation and collection so that it's a transitional document but at the appro­priate and opportune moment Zimbabweans have to be given the opportunity to write a people-driven constitution in a manner that will inspire confidence, that will inspire credi­bility and legitimacy but that will be at some time in the future".

This position has been defended by Irene Petras — the director of Zimbabwe Lawyers for Human Rights (ZLHR) — who recently told the media during the launch of a ZLHR book entitled "Zimbabwe's Constitutional Drafts: Comparisons and Recommendations "only a stable government with one centre of power had the capacity to initiate the process of creating a permanent constitution".

It is therefore very clear that the MDC for­mations believe that an imperfect constitution is for them a perfect election strategy and that is why they want a document they have acknowledged is imperfect as a draft constitu­tion to be adopted as is without amendments.

The warped view of the MDC formations is that the imperfect draft constitution should be taken forward as is to the second so-called all-stakeholder conference because the GPA negotiators in the Copac management com­mittee signed it on July 18, 2012 allegedly on behalf of their political parties.
Yet this is utter nonsense. As already pointed out, the Copac management process cannot be relied upon in this case because it was seriously corrupted and contaminated by Welshman Ncube who illegally and unilater­ally participated in the management commit­tee without the other two GPA principals.

That alone is enough to justify throwing the imperfect draft constitution into the dustbin where it belongs. And the fact that members of the Copac management committee allowed Welshman Ncube to participate in the crafting of the so-called final draft when they know only too well that he is now supposed to be a principal proves their duplicity and lack of seriousness as much as it proves the tragedy of a constitution making process that is neither legally defined nor legally driven wherein any­thing goes depending on the whims and caprices of those in charge of the process.

For the record, it must be understood that the Copac management committee is just that, a committee. It is a committee of Copac and not of Parliament or of Government or of the GPA parties but of Copac. It must also be recalled that although it was initially set up up in Parliament in terms of Article VI GPA,  Copac subsequently left Parliament and oper­ated as it still does outside Parliament both physically and operationally such that its work has not been done in accordance with the standing rules and orders of Parliament.

Copac has been an opaque process driven by Western donors through the UNDP and this is a documented fact and some evidence of this is already in the public domain with more shocking things that have happened behind the scenes away from Parliament still to come. Quite frankly, the Copac process has been quite treacherous and the so-called final Copac draft has a lot of evidence to support this unavoidable conclusion based on just reading the draft.

Against this backdrop it is an insult to our country's inclusive national leadership, espe­cially as represented by President Mugabe and Prime Minister Tsvangirai, for anyone to sug­gest that the Copac management committee has the last word on the final draft constitution done in terms of the GPA. That is a dangerous hogwash and even treasonous stuff and those, like Douglas Mwonzora and Welshman Ncube, entertaining it need to be careful for their own sake if good sense and the rule of law are not enough to persuade them.

If the GPA negotiators are now as important as is being claimed by the likes of Welshman Ncube and Douglas Mwonzora to the point that they have the last word on behalf of the GPA parties that make up the Inclusive Gov­ernment, why did they not sign the GPA itself upon which the Copac constitution-making process is based? Yes, they negotiated the GPA, but they did not sign it.

It is common cause that the GPA was in fact signed by the leaders of the three political par­ties in Parliament. Is it the intention of Welsh­man Ncube and Douglas Mwonzora to com­municate that a silent coup has taken place and that Zimbabwe is now under the control of GPA negotiators otherwise known as the Copac management committee? Is that the subliminal and subversive message being sent?  What is going on here? The Copac process has been done under Article VI of the GPA whose signatories are President Mugabe, Prime Min­ister Tsvangirai and Deputy Prime Minister Arthur Mutam­bara. Whereas Welshman Ncube may have a legitimate case that he has replaced Mutam­bara as leader of the smaller faction of the MDC, it is wrong for him and those who sup­port him to deal with that issue by pretending that GPA negotiators are now superior to GPA signatories. That pretence is absolute folly with potentially disastrous con­sequences which nobody should want.

Although there have been worrying reports that, ahead of this week's annual Sadc summit in Maputo, Prime Minister Tsvangirai is once again region-trotting carrying with him the so-called final draft constitution crafted by the Copac management committee. It would be most unfortunate and indeed embarrassing if Tsvangirai gives the leaders in the region copies of a draft constitution that does not carry his signature as a GPA principal.

There is a bottom line to all this and it is that GPA political principals are yet to pronounce themselves on the so-called Copac final draft constitution one way or the other.  Unless and until that happens the chitchat out there about the so-called final Copac draft constitution will remain the mumbo jumbo it is.
And for those who want to know why the GPA negotiators signed the draft they pre­pared on July 18, the answer is simple and straightforward: they did that not for the first time as the history of their negotiations is lit­tered with many signed documents that have never seen the light of day.

They signed the Copac draft constitution and marked it as final simply and only to indicate that the words on the pages they signed are theirs and they signed to officially announce that they had completed their task and were agreed and happy to submit their draft to their political principals for the draft to be examined by the principals and their political parties. That is what is happening right now. There is nothing less, nothing more and nothing strange.

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