Zimbabwe draft constitution's scandalous compromise

Finally the debate on the proposed constitution can now begin in earnest given that at long last the GPA negotiators - styling themselves as the "Management Committee" - have produced a final draft which was adopted by Copac last Thursday as representing the Parliamentary Select Committee even though its members minus its co-chairpersons had not read it.

Curiously if not tellingly, Copac's final draft constitution has been produced as a "compromise" document.

This is curious because it is not clear as to who has made the alleged compromise and telling because it is clear beyond argument that Copac's final draft constitution is a compromise that is not based on the views of the people as envisaged by Article VI of the GPA under which Copac was established. The GPA negotiators should explain whether it's them who have compromised with one another or whether their purported compromise represents the GPA political parties.

In the meantime, there are some fundamental points that need to be made.  It is disappointing to note that there is not even one example in the history of nations where "compromise" has been the operative value or guiding principle or defining method in the making of a new constitution by an independent and sovereign republic such as ours. Without exception the record will show that "compromise" has been operative in the making of transitional constitutions from colonialism to independence as happened in the making of Zimbabwe's Lancaster constitution in 1979 or from apartheid to democracy as happened with the Codesa constitutional negotiations in South Africa in 1994 or from war to peace as happened in South Sudan in 2011. The record will also show that independent and sovereign countries rely on all-inclusive and legally defined structures that involve but are not limited to ruling political parties to make and frame new democratic constitutions.  This is because negotiated constitutions are by definition not democratic, especially those that are negotiated behind closed doors between unaccountable individuals.

As such, and on process grounds, the final Copac draft constitution released last week leaves a lot to be desired in that it is inherently undemocratic. There is no way under the sun that anybody will convince rational and thinking people to say a manifestly undemocratic process can ever have a democratic outcome.  This point has been made before by a cross section of Zimbabweans and there is therefore no need to belabour it here suffice it to say that even if the GPA negotiators manage to convince their parties through the political principals to support and enact into law the draft they have prepared under dubious compromises, the fact is that Zimbabwe will get a constitution which will most definitely be challenged and thrown away by future generations.  There can be no doubt about that not least because some of the compromises that have been made are not just dubious but they are also ridiculous and totally unacceptable.

Consider the following four specifics which show that the draft prepared by Copac's management committee is a negotiated compromise that (1) does not reflect the views of the people gathered during the Copac outreach programme; (2) does not reflect the responses of the political parties to the draft prepared by Copac's co-chairpersons on April 22; (3) does not reflect the agreed positions established before Copac referred the "parked" issues to the management committee and (4) is littered with serious internal contradictions cynically intended to politically placate competing constituencies to the point of being constitutionally incoherent.

In the first place, and has already been pointed out, Copac's final draft constitution negotiated by its management committee has no foundation in the views of the people gathered during Copac's outreach programme and contained in a National Report that Copac has failed to publish to this day. This is a sad reality which guarantees the draft a doomed future even if it should sail through under the stewardship of the GPA government.

In the second place, the final Copac draft constitution does not honestly reflect the fundamental views of the GPA political parties that were painstakingly expressed as comments on the first draft prepared by Copac co-chairpersons on April 22, 2012. Rather than address the views of the GPA parties, Copac's final draft placates those views in disturbing Machiavellian ways that do not make constitutional sense.

For example, Zanu-PF which rightly understands that Zimbabwe is a "unitary, sovereign democratic State" will find reference to these words in the draft but will not find anything else in the same draft which gives constitutional expression to the same words. MDC-N supporters who have been clamouring for "devolution" will find the word used in two or so places in the draft but they can rest assured that they will not find a coherent constitutional content of their misplaced expectation. It is clear that there is a lot of playing with words in the draft to falsely appease perceived constituencies. That cannot be right by any stretch of the imagination. A constitution ought to be a much more serious and much more honest document than what we have.

Another example of an issue that Zanu PF had clearly addressed in response to Clause 3(2)(a) of the April 22 draft of Copac's co-chairpersons which provided that "The principles of good governance, which bind all institutions of the State and government at all levels include: - (a) a multi-party system of democratic government". This supposedly "binding" clause with very serious consequences that are far reaching has been returned by Copac's self-indulgent management committee despite a very clear and very robust submission from Zanu-PF to the contrary.

The reason for that submission is that it is not for any constitution to prejudge the will of the people by prescribing or requiring that the government of the day should be a one-party state or a multi-party state. The same argument against a legislated one-party state applies to a multi-party state. Whether a government is made up of one party or two parties or more parties must not be required by the constitution but must be decided by the electorate in a free and fair democratic election. All that the constitution needs to do is to provide for a multi-party democratic electoral system and not for a multi-party democratic government.  The two are entirely different things. It seems that there are some GPA creatures in the Copac management committee who want to entrench their positions into the constitution via the same backdoor that they used to get into the GPA government and that is a shame.

Yet another very worrying example of omission by the GPA negotiators is their failure to include the value, objective and legacy of the liberation struggle as a founding pillar of the State in Zimbabwe which is absolutely necessary. There would be no Zimbabwe today without the liberation struggle and excluding it as a founding value and guiding principle of any new constitution or of the State is an indescribable and most shameful betrayal of the fallen and living heroes of the liberation struggle and indeed a betrayal of the people of Zimbabwe and their historical, current and future aspirations. This is especially so in view of new and spirited attempts to recolonise countries such as ours under the guise or even in the name of the sort of neo-colonial things that are listed under Clause 3 of the draft constitution prepared by Copac's management committee of GPA negotiators.

In the third place, Copac's final draft constitution erodes confidence in its integrity in that many constitutional issues that had been agreed and which were therefore not "parked" and which were thus not referred to the management team of negotiators by the Select Committee have been inexplicably changed or removed. There are many such instances throughout the draft.

For example, the agreed position in Clause 9.26(1)(m) in the draft prepared by Copac's co-chairpersons and supported by the GPA political parties consistent with the views of the people was that the composition of the Judicial Services Commission should include a person nominated by the Council of Chiefs but the new equivalent Clause 8.28 of Copac's final draft eliminates that representation and yet Clause 8.1(g) of the same draft recognises the customary law courts that are presided over by traditional leaders. Why something that was right has been made wrong by the GPA negotiators boggles the mind made worse by the fact that there are many more examples of the same indiscretion bordering on subversive conduct. Why would people change what is right which has been agreed by everybody concerned unless they are up to some mischief?  Perhaps time will tell one way or the other.

But such conduct does not inspire any confidence in the GPA negotiators who have previously agreed on illegal compromises such as the so-called media reforms with respects to the boards of ZBC, BAZ, and the Zimbabwe Mass Media Trust which are patently unlawful.  The conduct is as unbelievable as it is sickening and demonstrates the corrupt practice of the negotiators who now believe themselves to be above everyone else and thus unaccountable. All along the talk and the understanding was that the Parliamentary Select Committee needed to refer only "parked" issues that the Copac had failed to resolve. There's nothing in Article VI of the GPA which gives the management committee veto power over the Select Committee or over the GPA parties themselves.

A lot of careless talk is being attributed to some unelected and unappointed and yet thoughtless GPA negotiators better known as GPA creatures who are going around boasting that nothing will happen in Zimbabwe which they do not approve allegedly because of the behind-the-scenes support they say they have in Sadc. Chickens will come home to roost sooner rather than later if that careless talk is taken too far to poison something as important and as fundamental as the making of a new constitution for every Zimbabwean and posterity.

In the fourth place, the Copac draft prepared by its management committee is internally contradictory in fatal ways that belie the compromises that are alleged to have been made by the GPA negotiators. A constitutional compromise should add to the organic coherence of a constitution and should not subtract from it to the point of producing an incoherent mishmash as we now have.

For example Clause 1 about "The Republic" says "Zimbabwe is a unitary, democratic and sovereign republic". As already pointed out, this clause does not have any other provision in the draft to beef it up in any way whatsoever. It is an empty statement to mislead Zimbabweans into the false belief that their country is a unitary and sovereign State in terms of their Constitution when the draft constitution does not in fact deliver the declared promise.

While chapter one of Copac's management committee draft constitution says in Clause 1 that Zimbabwe is a unitary, democratic and sovereign republic, Clause 3(2)(l) of the same chapter says "The principles of good governance, which bind the State and all institutions and agencies of government at every level, include-the devolution of governmental power and functions". This is an unhelpful contradiction cynically intended to placate opposing constituencies in a dishonest way that is equivalent to wanting to eat and keep the cake at the same time.

The fact of the matter is that in a unitary State governmental power is delegated and not devolved and the delegation is done through decentralisation and not devolution. The GPA negotiators seem to think that the concept of a unitary State is geographical and that perhaps explains why for example their Clause 14.1(2)(c) and 14.2(1)(d)(i) meaninglessly refers to the "indivisibility of Zimbabwe" as an affirmation of the unitary State they proclaim in Clause 1.

But that is a grave error. The concepts of unitary state, federalism and devolution have to do with "governmental power" and not with "geography".  In essence, and this is a crucial point that the GPA negotiators have altogether missed in their draft, governmental power - or the political power of the State in a unitary constitutional structure - is  "indivisible". Where and when this power is delegated it still remains with the centre and can be recalled to the centre or redefined. Therefore it is meaningless to have a unitary State only in name.

There's another very serious problem which exposes the poverty and even the danger of the GPA compromise in Copac's final draft. While Clause 1 defines Zimbabwe as "a sovereign republic" which should mean that it has autonomy to make national and foreign policies, Clause 2.5(1)(b) says that "The foreign policy of Zimbabwe must be based on the following principles - respect for international law". Does America, the UK, EU and Nato countries have such a principle in their constitutions? Indeed which constitution of a sovereign republic has such a principle regarding its foreign policy?

The constitutional fact of the matter is that the foreign policy of any modern State depends on the government of the day. International law is not cast in stone nor is it neutral or fair. In this era of regime change and recolonisation, international law has become a weapon of the West against the rest of the world and only puppets will put in their constitutions that their foreign policies should respect international law.

Finally and still on the question of its internal contradictions, while Clause 3(2)(e) pledges "the observance of the principle of separation of powers" the entire draft of the management committee treats the executive as subservient to the legislature and the judiciary arms of government especially with respect to the making of key appointments of officeholders in constitutional bodies. The judiciary is even given not an interpretative but a veto power over the other two branches of government.

What we have is a principle of "separate but unequal powers". In Clause 6.4(2) the legislature is even given the strange and unprecedented 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".

Surely this cannot be the power of the legislature in a constitutional democracy where the legislature must make laws but not enforce them as that is the constitutional duty of the executive.

There's more and in fact much more that is very worrying with Copac's final draft prepared by GPA negotiators with suspicious interests. The debate has begun and let it ring loud across the country without fear or favour.

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Professor Jonathan Moyo is the MP for Tsholotsho North