The Copac Draft and the politics of constitution-making

A political storm is supposedly brewing over the Article in the 'leaked' Copac draft constitution which allegedly seeks to disqualify President Mugabe as a presidential candidate for the coming elections, whenever those elections will be held.

President Mugabe is already quoted as accusing the MDC for the draft provision: "√ɬ¢√¢‚Äö¬¨√Ǭ¶ It is the thinking of the MDC. They are afraid. They are just cowards. They are afraid of being defeated by President Mugabe." (Sunday Mail, 19/02/12 - "We will reject flawed constitution: President"). Today Bulawayo24 reports Professor Jonathan Moyo as dismissing the Copac draft as 'a draft constitution against Zimbabwe and not a constitution for Zimbabwe' √ɬ¢√¢‚Äö¬¨√Ǭ¶ "because it is targeting a particular individual  - President Robert Mugabe." (Byo24, 20 February 2012).

Well, is that true?

Let us start at the beginning and look at the 'offending' draft Copac provision through all its panel-beating stages, across all three relevant constitutions: the 2000 Constitutional Commission version, the Kariba Draft, and the Copac Draft. I have underlined the relevant wording so readers can easily reference them.

The relevant provision in the 2000 Constitutional Commission draft was Part 11 (2). Under that section the draft provision read: "A person is disqualified for election as President if (a) he or she has already held office for two terms …" It may be worth noting that this provision is most succinct and clearest under the 2000 Constitutional Commission version which Professor Jonathan Moyo was so instrumental in bringing to life.

In the Kariba Draft the relevant section is Part 11 Section 81 (2). It read: "A person is disqualified for election as President if he or she has already held office as President after the appointed day for two terms as defined in section 84." Section 84 referred to here is not relevant to the principle of maximum two terms established by that section except that under the Kariba Draft the presidential term was potentially longer. Nonetheless, outside emergencies contemplated via section 84 in the Kariba Draft, it must be emphasized that the life of Parliament (to which the presidential term was tied) remained 5 years. So a two-term maximum disqualification period would still have been 10 years in the Kariba Draft as it still is in the present Copac Draft and the rejected 2000 Constitutional Commission draft.

Under the Copac Draft the relevant draft section is Part 2 Section 6.4 (2), which reads:  "A person is disqualified for election as President if he or she has already held office as President for one or more periods, whether continuous or not, amounting to ten years."

Before I make my point I need caution that the 2000 Constitutional Commission constitution I have used here is as extracted from the Internet and may well not be the same as what the final version looked like. However, on the assumption that there is no difference with the final typed version, I make the following critical points.

From the above quoted provisions, anyone can see that there is nothing materially different in the three versions. The essential point is that in all three versions a person is disqualified from running as president if that person has already held office as President for two terms, which in all three cases, is a maximum of 10 years.

Clearly, the Copac draft adds nothing more serious to disqualify President Mugabe anymore than the 2000 Constitutional Commission and Kariba Draft did. The only different wording introduced by the Copac draft is the phrase "… for one or more periods, whether continuous or not … " However, that phrase, whether in relation to President Mugabe or anyone else for that matter, is superfluous and adds nothing.

For President Mugabe, in over 30 years of his rule he has already served the maximum of two terms of 10 years, whether you chop those periods or you consider them continuously. So he would be disqualified anyway. For anyone else other than President Mugabe the phrase is also superfluous because President Mugabe remains in power. But for the future, one must assume that the maximum 10 years limit will mean exactly that in the final version of the constitution so that, as in America, there is no debate or question about the 10 years maximum, meaning there will be no need for that sort of wording to be included in the constitution.   

So where is the problem with the 'leaked' Copac draft provision?

Silly as it may sound, the problem is that there is no problem. The real point is the politics of the whole thing. There are three possible political points from Zanu-PF and President Mugabe's point of view.

The first is that this may well be a rehearsed position from Zanu-PF designed to distract and divert everybody's attention away from the more dangerous provisions of the draft constitution, such as the truly shocking powers being given the President by the draft constitution as a whole.

Nobody outside Zanu-PF's senior partner in the synthetic GPA, MDC-T, seriously does not expect President Mugabe to run for president. Clearly, Zanu-PF are already looking beyond the elections. They have done their homework and are believe they are 'assured' of victory. With such enormous powers granted by a new constitution, Zanu-PF would be set to deal with 'the MDC menace' once and for all. (A possible miscalculation from them too).

The second political calculation from Zanu-PF may already have been played, by 'allowing' the alleged 'offending' draft provision to find its way into the draft. This affords Zanu-PF the opportunity to show how these 'imperialist fronts' are scheming against the 'heroic people of Zimbabwe' and how they are now trying to effect 'regime change' via a constitution having failed to do so through elections. The choreographed hysteria over that draft provision is likely set to rise in the next coming months.

It is simply unreal to imagine that Zanu-PF would have ever allowed the draft provision into the draft if Zanu-PF did not want it. As I show above, the 'offending' draft provision in the Copac draft already exists in the 2000 version and the Kariba Draft with the same import as does the Copac draft. So how come there was never hysteria with the 2000 Constitution and Kariba Drafts at all and yet we are beginning to see it in relation to Copac draft? The answer, of course, is in the politics.

The third possible political point is that by 'allowing' the 'offending' draft provision into the Copac draft Zanu-PF has politically leveraged itself to reject the draft constitution off-hand and thus prolong the outstanding political issues around the GPA, and thereby delay fresh elections to the utmost (ie to a full 5 year parliament period, which is 2013).

President Mugabe will apparently now not sign into law a constitution with a provision that disqualifies him as a presidential candidate although, rather curiously, he would have signed it had the 2000 constitution not been rejected. What is clear is that we are seeing Zimbabwe's very constitutional existence tied to the fate of one man: President Mugabe. All politics in Zimbabwe revolves around the political fate of this man, hence all these political contradictions that seem to defy any sense of order and orderly reasoning.

The point is there is too much at stake for President Mugabe personally and his cronies generally. President Mugabe wants the protection of office. His cronies also know only too well that their own protection derives from President Mugabe's. Many, knowingly or unknowingly, have been sucked into this 'inner core' of frightened parties, thus expanding the team that is prepared to use anything at its disposal for self-protection through public office. Mugabe thus buys them time too.   

I have never been persuaded or convinced that Zanu-PF and President Mugabe want early elections any more urgently than the MDC formations, as Zanu-PF continues to claim. It's all a ruse. The truth is that elections are too risky as an assurance of impunity, particularly for President Mugabe himself. Thus, the longer the GPA process (the new tool for that purpose) is strung out, the better it is for President Mugabe personally and his cronies. It certainly is a more attractive prospect for President Mugabe to become invalid by reason of age or for nature to intervene while still in office than to lose the protection of office and face the humiliation of being hauled before the coals of an international criminal tribunal. In many ways I believe that the repeated assertions from MDC in particular that there will be no elections this year are music to President Mugabe in particular. From Zanu-PF and President Mugabe's point of view the GPA has played the time-buying role effectively.

I see no political advantage for MDC in having such an 'offending' draft provision other than a forlorn hope that President Mugabe might sign himself out of participating as presidential candidate in the next coming elections. If however the MDC are looking beyond Mugabe, into the future, there may have a noble political point. Otherwise I see no other political value to the MDC formations about this draft provision even as I believe MDC-T, in particular, do.

But I fear that the MDC, particularly MDC-T, have been outmanoeuvred already on all political fronts. They may hope that the draft constitution sees the light of day as it is or slightly modified. That would eliminate the 'Mugabe factor' out of the political equation and perhaps see Mr Tsvangirai 'eased' to coronation. As this is unlikely to happen the MDC will likely pay considerable political price (by being accused of being 'traitors' now working for regime change via the constitutional draft).

In the final analysis, it clear that the GPA was never intended to be a serious thing beyond suctioning pressure out of Zanu-PF bloated political woes of 2008 and buying Zanu-PF and President Mugabe more time.

As it is now clear that the Copac Draft is the same Constitution rejected in 2000 Zanu-PF can only wait in glee to see its well-worked out plan come to fruition, when the people, once again, and this time with the help of a big nudge from government, reject the Copac Draft in 2012.

So you need not be surprised that the government wanted the 2000 constitution adopted (if ever) but does not want the same constitution adopted in 2012. The answer, as we now all know, is all in the politics. That is why we now need a new, true, and authentic constitution-making process to regulate and subordinate politics to the supreme authority of the constitution.   

--------------------------------------

Ndabezinhle Edwin Mkhwananzi is a social commentator and writes in his personal capacity. Contact him at nedwinm@aol.com