Constitution headaches persist

WHEN the Constitution Parlia-mentary Select Committee (COPAC) finally produced their draft constitution after three years of work, many Zimbabweans expected that the draft would have ownership of all the three main political parties in the inclusive government.
But what followed the conclusion of the COPAC draft last month has been drama at its worst. The Movement for Democratic Change (MDC) formations led by Prime Minister Morgan Tsvangirai and Welshman Ncube quickly endo-rsed the draft. But President Robert Mugabe's ZANU-PF convened a meeting of its decision-making body, the politburo, and deliberated on the draft, going through it sentence by sentence, according to reports. They have met three times in two weeks already.
While ZANU-PF's decision to unpack the draft in their Politburo sessions was largely expected, the hard-line stance emanating from these meetings was not.
 Although there was a section of critics within ZANU-PF opposed to the COPAC draft from the start, the back and forth process that the draft went through had left many thinking that the product, in the end, would be acceptable to all within the liberation war party. 
That the party was aptly represented in the COPAC management committee by experts in the mould of Justice Minister Patrick China-masa, Nicholas Goche and Paul Mangwana who frequently consulted their party during the drafting of the constitution gave their counterparts in the other political parties the impression that ZANU-PF was in agreement. 
More so, the adoption of some clauses that ZANU-PF had put in their 30-page document of proposals to the draft early this year meant that the MDC formations had bent backwards to facilitate progress. 
Yet the COPAC draft already faced criticism that it had become a politically negotiated document that largely ignored views of the people as expressed during the outreach programmes. But, the outreach programmes themselves were roundly criticised as showmanship by ZANU-PF amid allegations that the party bussed in and coached people to sing from the party's "hymn book" of views. Violence even erupted at some venues.
Civic groups say that the draft constitution conforms more to politicians' wishes rather than those of the people as expressed in the various outreach programmes.
In fact, the delays in coming up with the draft were a result of political squabbling over clauses political parties were not comfortable with. This gave credence to claims that the draft constitution had become essentially a negotiated affair than a document reflecting the will of the people as expressed in outreach meetings.
"The MDCs have made so many concessions on this constitutional draft, but it is clear now that ZANU PF is not interested in compromise, neither is it interested in a new constitution ahead of elections given the reasoning that a new constitution will aid the MDCs to win elections. These ZANU-PF shenanigans of coming up with endless amendments and objections to the COPAC draft show clearly that ZANU-PF wants elections under the current constitution and is just coming up with endless excuses," says Dewa Mav-hinga of the Crisis in Zimbabwe Coalition.
Blessing Vava of the National Constitutional Assembly (NCA) agrees.
"From the onset, ZANU-PF never wanted a new constitution, and they tried to scuttle the process from the start. They are comfortable with the current Constitution and if you notice they are pushing for more amendments to the COPAC draft that are more or less what is contained in the current Constitution," says Vava.
Political scientist and constitutional law expert, Lovemore Madhuku, who is NCA chairperson recently dismissed the COPAC draft as plagiarised work which is otherwise a replica of the Kariba draft.
The Kariba draft was negotiated between the two MDC formations and ZANU-PF in Kariba in September 2007. ZANU-PF has been pushing for the adoption of the Kariba document as an alternative after disagreeing with many points that had been included in COPAC's first draft.
As a result, most civic groups say they will influence the people not to vote for parties that reject the views of the people in the next elections, in an apparent reference to the constitutional referendum.
But Madhuku said that civil society will be divided into two groups consisting of those who will generally stick to the larger grouping of the MDC's position and those who advocate for a people driven constitution. 
Former information and publicity minister and ZANU-PF Politburo member, Jonathan Moyo, has also lambasted the draft calling it "an exercise in mischief". 
"What ZANU-PF is doing is typical. They thrive on disorder and interrupting processes because the status quo benefits them. We have seen this happening from day one where the constitution-making process is concerned - from the disruptions of the first all-stakeholders conference, the bussing in of hooligans to disrupt outreach meetings, and attempts to stop the drafting of the new charter, and now the refusal of a product that they were party to making.
"If it was not clear before to the MDCs that they have a wily and untrustworthy partner in the Government of National Unity, it should be clear now," said Mcdonald Lewanika, an analyst."To ZANU-PF, all these process are not meant to yield anything, but only serves to prolong their control and hold on the State.Given where we are with the process, ZANU-PF, while they can be allowed to make their own decisions, should not negate the rights of the people of Zimbabwe to do the same. As far as we know, politicians have had their say in the process, what we need now is a real national debate on the outcomes of the COPAC process, and have people pass their verdict on it, at the all-stakeholders conference, and the referendum," he added.
But compared to the draft constitution of 2000, some analysts say  the COPAC draft does not fare any better. 
"The weakness of the 2000 draft, which has persisted under the current draft is of failure to trim the excessive Executive presidency powers, but perhaps there are improvements in the current draft that can justify its adoption on the basis of incremental gains moving away from the risk of throwing away the baby with the bath water as was done in rejecting the 2000 draft," says Mavhinga.
Vava says the main weakness of the 2000 draft was the process.
"The Constitutional Commission was appointed by the President, its timetable was set by the President and the President had the final say over what went into its Draft Constitution. 
"The Commission itself also ignored a number of issues raised by the people such as the Executive presidency," said Vava.
"The draft of the Constitutional Commission provided for an executive president with powers of appointing and dismissing most public figures, exercising the prerogative of mercy, dissolving Parliament, declaring a state of emergency etc. 
"The President had powers to dissolve Parliament at anytime. A law passed by Parliament could be overridden by the President. 
"The Draft did not provide for a truly independent Electoral Co-mmission. It also did not provide an appropriate framework for devolution of governmental powers to provinces and other local structures. Essentially, there was no devolution in that draft," added Vava.
So, Zimbabwe's constitution headaches have persisted since independence. 
The Lancaster House Constitu-tion, the Kariba draft and the COPAC draft have all fallen short when it matters. 
While being negotiated documents, they have neglected the views of the majority of Zimbabweans. 
The Constitutional Comm-ission's 2000 draft was also rejected for the same reasons.