Opinion / Columnist
Let's delink Copac constitution from elections - Prof J Moyo
05 May 2012 at 21:03hrs | Views
There's now a clear and present case for delinking the forthcoming general elections due this year from the embattled Copac constitution-making process whose latest co-chairperson's draft made public in The Herald on May 1 is as organically flawed as the earlier draft also made public by The Herald on February 10.
It is now absolutely necessary for the Copac constitution and the forthcoming elections to be delinked because the two should not have been linked in the first place. If the delink is not done, then our country should brace up for a phase of certain instability.
Otherwise the presumed link between the Copac process and the general elections which has given rise to desperate propaganda all over the place and especially within Copac circles is a fallacy because there's absolutely nothing in Article VI of the GPA under which Copac was established which requires a link between the next elections and a new constitution. Nothing! In fact the word "elections" does not appear anywhere in the GPA, let alone in its Article VI. Whereas the origin of the false link between the ill-fated Copac constitution and the next elections is not that obvious, there are five obvious and compelling reasons why delinking the two has become absolutely necessary if not unavoidable.
As already mentioned, the first reason why a delink must now be done is because the GPA does not make any link between the Copac process and the next elections. This is not surprising not least because the three political parties in the Inclusive Government, Zanu-PF and the two MDC formations, had already agreed on a proposed new constitution for Zimbabwe, the Kariba draft, when they signed the GPA on September 15, 2008.
It is notable that although the Kariba draft was signed in January 2008 it was not used to run the general elections on March 29, 2008 primarily because the three parties were aware they had already negotiated and agreed on minimum constitutional conditions for free, fair and democratic elections based on Sadc guidelines for such elections which were enshrined as they still are under Constitutional Amendment Number 18.
What this means is that there was no need to implement the Kariba draft signed in January 2008 ahead of the March 2008 general elections because the negotiated constitutional framework for free and fair democratic elections had been implemented by Zanu-PF and the two MDC formations under Constitutional Amendment Number 18.
Against this backdrop, it is understandable that when Zanu-PF and the two MDC formations went into GPA negotiations in July 2008 after President Robert Mugabe won the presidential runoff election in June 2008 which Morgan Tsvangirai boycotted following the March 29, 2008 general elections whose parliamentary results were inconclusive leading to the current hung Parliament, the purpose of the negotiations could not have been to get a new constitution not least because the three parties had already agreed on a new Kariba draft constitution.
With a hung Parliament coming out of the March 29 general elections, the GPA negotiations were undertaken primarily to agree on the formation of a coalition government and to entrust the new government with the responsibility of eliminating political violence that had unfortunately sprouted in the country between April and June 2008. It is clear from Article VI of the GPA that the question of a new constitution was intended to give the three parties an opportunity to put their Kariba draft to the people but certainly not to make the drafting of a new constitution by Copac a precondition for the next general election. In this regard, it should be remembered that the facilitators of GPA negotiations also facilitated the Kariba draft negotiations.
The issue to underscore on this point is that the GPA does not require at all that the next elections should be held under a new constitution. Those among us who have sought to claim that there is a link in the GPA between the Copac process and the next elections are liars. As such, the view that the three GPA parties would need permission from Sadc to hold elections under the current constitution is at best false and at worst pure mischief in the pursuit of hidden regime change or succession agendas. A delink between the Copac process and the next elections is therefore now necessary because there's no link in the GPA contrary to the propaganda out there.
While the first reason why the Copac constitution-making process should be delinked from the next elections is that there is no GPA link between the two, the second and related reason is that the current constitution is particularly suitable and more than adequate in its provisions for free, fair and democratic elections consistent with the relevant Sadc guidelines for that purpose.As already mentioned these guidelines are in Constitutional Amendment 18 and they were achieved in December 2007 as a direct result of negotiations and agreement between Zanu-PF and the two MDC formations to ensure that the Constitution of Zimbabwe enshrines Sadc's guidelines governing free, fair and democratic elections to ensure good governance. It is therefore a fact that constitutional reforms for free, fair and democratic elections in Zimbabwe were implemented in December 2007 under South African led Sadc mediation ahead of the March 29, 2008 harmonised presidential, parliamentary and local government elections.
Clearly what this means is that there is absolutely no need for constitutional reforms in particular or a new constitution in general to enable free, fair and democratic elections because those specific reforms were made in December 2007 by the very same parties that are in the Inclusive Government and the reforms are now part of our fundamental law. It therefore follows that there is no link and there must be no link between the Copac constitution making process and the next harmonised elections that must be held this year without fail. There would be a link perhaps if Sadc had not through its South African led mediation facilitated constitutional reforms in December 2007 for free, fair and democratic elections which are now in the Constitution of Zimbabwe.
The fact that political violence reared its ugly head between April and June 2008 had nothing to do with any gap in the Constitution. Without justifying that unacceptable and unrepeatable violence, it is a fact that it was specifically provoked by the politicisation and internalisation of our electoral process by some Nato countries that have been seeking regime change in Zimbabwe as Britain, France and the US whose leaders illegally declared Morgan Tsvangirai the winner of the presidential election and urged him to form an illegal government immediately after the March 29, 2008 election when the legal, constitutional and factual position was that none of the four candidates who contested in the first round had garnered 50 percent plus one vote as required by the law.
The danger that remains in our country ahead of the forthcoming general elections does not come from any shortcoming in our Constitution but from the hostile behaviour and destabilisation of our country by regime seeking countries such as Britain, the EU, the US and their allies who are not subject to our Constitution. That is where the problem is and not in our Constitution.
In addition to the facts that the GPA does not link the Copac process with the next elections and that the current constitution already has entrenched constitutional reforms for free, fair and democratic elections which make a new constitution unnecessary for new elections; there's a third reason why there should be no link between Copac's ill-fated draft constitution and the forthcoming elections and it is that more than 80 percent of the views of the people of Zimbabwe gathered during the Copac outreach endorsed the current constitution as amended 19 times.
One very important consideration why Copac is now generally seen as a deceitful process with mafia-like trappings is because its co-chairs have provided such poor leadership that they have lacked the integrity to acknowledge the self-evident fact that an overwhelming majority of the views of Zimbabweans, more than 80 per cent, believe that the current constitution as amended 19 times is fine. Surely, the Select Committee, especially its co-chairs who have set themselves up as Copac, should be sobered by this unimpeachable fact.
In the circumstances, why then has Copac gone out of its way to produce a draft constitution which dramatically moves away from the current constitution when the indisputable fact is that the people have spoken in their numbers in support of our present fundamental law of the land as amended 19 times? Why does the Copac mafia continue to describe the current constitution as the Lancaster constitution when they know only too well that there's nothing Lancaster about it given that is has been amended 19 times to reflect Zimbabwe's independence experience and the aspirations of the nation?In any event, the fact that more than 80 per cent of the views gathered by Copac during its outreach programme favour the current constitution clearly means that there can be no case for linking the Copac process with the next elections. The people have spoken and they want the next elections held in terms of the current constitution. This is an empirical fact that can be corroborated by third parties with the easiest of efforts.
Along with the three already given above, the fourth reason why the Copac process must be delinked from the next elections is that the MDC-T, which is now deceitfully claiming to be supporting the draft constitution produced by Copac co-chairs, has been very clear all along that it views the Copac constitution not as a permanent product for allZimbabweans and all times but only as a transitional instrument for grabbing power to be discarded after the elections.
Just consider only some of the overwhelming evidence now in the public domain which supports this conclusion beyond any argument.
In October 2010, well before the constitution-drafting exercise started towards the end of the Copac outreach programme, Tsvangirai addressed a meeting of Harare residents and revealingly told them that "I urge you all 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".
Tsvangirai was to repeat the essence of his message that Copac is an election strategy for his MDC-T party when just before the start of the Copac constitution-drafting exercise in December 2011, he was widely quoted by the local and international media as saying that "a new constitution for Zimbabwe which is now with government drafters, with a referendum to follow, will be abandoned as soon as the MDC party wins power".
Describing the Copac process as flawed, Tsvangirai emphatically declared in his December 2011 statement that "this [Copac] constitution is a transitional one, we will write the people's constitution when we are in power but this has always been the MDC's agenda since 1999 [to use constitution-making to grab power] and we are pushing for that".
Before that statement by his beleaguered leader and while acknowledging that the drafting process had started, the MDC-T's national organising secretary √É¬¢√¢‚Äö¬¨" Nelson Chamisa √É¬¢√¢‚Äö¬¨" told SW Africa's Lance Guma in a pirate radio interview that "we 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 and that will be at some time in the future".
Then on January 20 after Copac's ever-drifting drafters had come up with their first draft which they completed on January 18, Irene Petras √É¬¢√¢‚Äö¬¨" the director of Zimbabwe Lawyers for Human Rights (ZLHR) which is a donor- founded and funded MDC T-affiliated advocacy group √É¬¢√¢‚Äö¬¨" endorsed the MDC-T's position on Copac during the launch of a ZLHR book entitled "Zimbabwe's Constitutional Drafts: Comparisons and Recommendations".
Petras said the current constitution-making process under Copac would result only in a transitional document which would be replaced by a permanent one in an allegedly stable post-inclusive government environment, arguing that "only a stable government with one centre of power had the capacity to initiate the process of creating a permanent constitution".
This long-standing MDC-T Copac strategy was repeated only yesterday by the party's Obert Gutu √É¬¢√¢‚Äö¬¨" who is the Deputy Minister of Justice and Legal Affairs √É¬¢√¢‚Äö¬¨" when he wrote a shocking but revealing piece in one of the daily newspapers about the Copac draft recently completed by the co-chairs and published by The Herald on May 1 describing it as "a transitional constitution" and urging Zimbabweans who must have read his piece in disbelief to "forget about the this mantra called people-driven constitution" saying on behalf of the MDC-T that "it would be folly, indeed, lunacy, for anyone to think that we can have a truly people-driven constitution".
With this backdrop, is there a serious or fair-minded person out there who still wants to know why the MDC-T is insisting on a link between the Copac draft constitution and the next elections? Is it right for the nation, and any other neutral party such as Sadc or even the UNDP which has been dirtying its hands by poking its nose in Copac, to insist that the next general elections should be held only after Copac has completed its draft or that the forthcoming elections should be held under a new Copac constitution when it is clear from the public record that the Copac constitution is intended only as a strategic election document for the MDC-T after which it will be thrown away should Tsvangirai's party win the election?
Surely, the fact that the MDC-T has systematically, persistently, consistently and publicly defined the Copac draft constitution as only an expedient document intended as a transitional arrangement only for the purpose of winning the next election is more than enough to delink the Copac process from the forthcoming elections and to find other appropriate ways of continuing the exercise in a way that is truly national and is intended to produce a permanent document beyond any abuse for electoral purposes by any political party.
The fifth and final reason why the Copac process must be delinked from the next elections that must be held this year is that √É¬¢√¢‚Äö¬¨" although as one of the Copac co-chairs Cde Munyaradzi Paul Mangwana had publicly declared that the draft prepared by the drafters in January and made public by The Herald on February 10 contained at least some 70 per cent of smuggled material that did not come from the people √É¬¢√¢‚Äö¬¨" the sum and substance of the latest draft of the co-chairs endorsed by Cde Mangwana by consensus and made public by The Herald on May is no different and thus no better than the one that contained 70 per cent smuggled content.
For close to three months since February 10 the Copac co-chairs said they were correcting the smuggled content out of the draft prepared by the drafters who drifted away from the views of the people but now there's concrete and undeniable evidence that the co-chairs themselves have also drifted from the views of the people and produced a scandalous draft that has left the drafters with the last laugh.
For example, we now have a Copac draft from the co-chairs whose Chapter One deliberately fails to acknowledge that Zimbabwe is a unitary state and mischievously entrenches provisions that clearly make Zimbabwe a federal state under false claims of devolution contrary to the views of the people.Another disappointing example is that while clause one of the draft's first chapter provides that "Zimbabwe is a sovereign republic", clause 2.6 of Chapter Two which deals with founding provisions of the draft stipulates that "Zimbabwe's foreign policy objectives must be based on principles of . . . respect for international law".
It is shocking that given the colonisation of this country in the name of international law and given the current re-colonisation of the word by Nato countries in the name of international law, Zimbabweans are being presented with a draft constitution prepared by people who do not know that being a sovereign republic means being able to make your national and foreign policy free from the dictates of the so-called international community which sees itself as being synonymous with international law.
There are many other clauses in the draft which surrender Zimbabwe's sovereignty to so-called international law in a manner that is shockingly treacherous.Throughout the draft, and notwithstanding the fact that more than 80 percent of the views of the people actually endorsed most of what is already in our current constitution, the latest Copac draft constitution prepared by the co-chairs makes a determined assault on Zimbabwe's 32 years of independence and seeks to break from that independence to make a new start which the MDC-T says is just transitional for electoral purposes. The draft seeks to create the first Parliament of Zimbabwe, the FirstExecutive and the First Republic from the first elections and wipes out 32 years of independence by the stroke of a pen.
In the process, strange provisions from foreign constitutions with no basis in our independence or the views of the people are entrenched to make a break with the past only for electoral purposes.
An example is clause one of Chapter Seven dealing with Parliament which scandalously provides that "the national legislative authority of Zimbabwe is derived from the people and is vested in and exercised by Parliament".
The President is ousted from this provision and yet in a constitutional democracy with an executive president it is a fact that the president exercises legislative authority with Parliament not least because he must assent or withhold assent to bills and make temporary legislation. When you get a draft constitution for a constitutional democracy that redistributes some of the president's powers to Parliament and ousts the president from exercising some legislative authority you must know that the draft is a product of mischief.
It gets worse when the mischief-makers even go as far as failing to recognise the country's flag, national anthem, coat of arms and public seal by coming up with a mischievous clause whose intention is to facilitate a new flag, a new national anthem, a new coat of arms and a new public seal as contained in clause 4 of the draft's Chapter One. Compare that with the Kenyan constitution from which the Copac co-chairs have stolen a lot which recognises and reproduces all the Kenyan national symbols as they are.
All this raises a fundamental question that is unavoidable. Why is the Zanu-PF co-chair in Copac, Cde Munyaradzi Paul Mangwana, associating himself with a draft that betrays the views of the people as expressed during the Copac outreach programme? Is it not obvious to him or anyone else in our broad nationalist movement that the MDC-T does not believe in the Copac process, judging by the contents of the new draft which are against the views of the people?
On what basis has Cde Mangwana reached a working consensus with the MDC-T formations to the point of producing, without the concurrence of the full Select Committee, a working draft constitution that is not only hostile to the views of the people gathered during the Copac outreach programme but that is also hostile to the values, ideals and achievements of the independence or nationalist movement itself?
Given the fact, on the basis of material that is in the public domain and which material should also be accessible to Cde Mangwana as a Copac chair representing Zanu-PF and the nationalist movement at large, that the MDC-T has all along been clear about its strategy not to make a new permanent constitution with its GPA partners and its strategy to use the Copac draft only as a transitional document to be discarded after the elections should the MDC-T win those elections, why is Cde Mangwana supporting that document?In the meantime and for the foregoing five reasons the need to delink the Copac process from the forthcoming elections cannot be over emphasised. The time to delink is now.
Source - Zimpapers
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