Zimbabwe headed for second GNU - interview

SW Radio Africa's Violet Gonda hosted a pre-referendum debate on her Hot Seat programme with Minister of Constitutional Affairs Eric Matinenga, NCA chairman Dr Lovemore Madhuku and Ozias Tungwarara, Director of the Africa Governance Monitoring and Advocacy Project - an Open Society Foundation project. Matinenga suggested that Zimbabwe was headed for a second government of national unity, a view backed by Madhuku while Tungwarara warned that the draft new constitution would not guarantee that future elections will be free and fair.

VIOLET GONDA: Let me start with Dr. Madhuku - your organization was arguing in the courts that the referendum date announced by President Mugabe was too soon for people to study and understand the draft constitution but this has been thrown out by the Supreme Court. Can you give us your reaction to the Supreme Court's decision?

LOVEMORE MADHUKU: We are obviously disappointed by the decision. We had hoped that the courts would have found in our favour. The period given which was just one month, we sincerely thought that was too short but unfortunately the courts said no because they thought it was reasonable and they could not interfere with the decision of the President. So we are disappointed by the decision, unfortunately we have to work with it.

GONDA: And if you had been given an extra month, what difference would that have made?

MADHUKU: It would have made a big difference to the democratic culture we are building in the country. The difference is not made by the Yes vote winning or a No vote winning. We had not gone to court to say we want more time in order to win; we needed more time to ensure that we could be able to exercise our democratic right to sell our ideas and so forth.

GONDA: Minister Matinenga, the NCA says that people were not afforded adequate time to scrutinise the draft but the Supreme Court has said that the time which was set out by President Mugabe was adequate. What's your take on this?

ERIC MATINENGA: I did not participate either at a personal or official level in those proceedings. I just worked on the basis that whatever the court says then that is what the court says and I conduct myself accordingly. Whilst the application was before the courts, my Ministry embarked on a nation-wide exercise to explain the draft to the people so that when the time comes for them to vote, at least they will vote from an informed position and I've been away from Harare, I think for the past two weeks, going province by province doing exactly that - my last stop was Hwange yesterday. Whatever the court was going to say, that was never going to stop the programme and I accept that what the NCA wanted, as Dr. Madhuku says, was not to stop the referendum but simply to be afforded what they considered to be sufficient time in order to be able to get across to the Zimbabwean population.

GONDA: But what would you have lost as government if you had given people more time to scrutinise the draft document?

MATINENGA: Violet I don't want to answer for somebody else. I think from the very beginning I made the point very, very clearly that the decision to identify the 16th of March was not my decision; it was a decision made by somebody whom I do not have control of.

GONDA: By President Mugabe?

MATINENGA: Yes.

GONDA: So your party in government had no say?

MATINENGA: I haven't said that. I've said I wasn't party to it. I can't remember the date now but I know that I briefed Cabinet about the constitution-making process and I had started on the constitutional awareness programmes already. I left early to go to Mvurwi and I then came back to be told that a decision to hold the referendum on the 16th (of March) had been made.

GONDA: There are others, especially in the civil society, who says that there are at least five million registered voters in the country, but the government through COPAC only printed 90,000 draft copies of the constitution. So if this is the case, isn't it worrying though that people are being told to vote Yes without the proper information if you only printed 90,000 out of about five million eligible voters out there?

MATINENGA: Violet I would have wanted more copies to be published but I think when you make reference to that figure; it is the figure for the English copies and does not include the figure for the other two vernacular languages which was Sindebele and Shona. So yes it was necessary to make more copies available but what is important is this - one does not necessarily get information from getting a copy. There are a lot of other ways of getting information and what my Ministry was doing was to invite stakeholders and then request these stakeholders to go back to their communities and then spread the word.

GONDA: Mr. Tungwarara there is so much talk about the process - what do you make of this?

TUNGWARARA: In constitution making, process is as important as the content of the final document on which people are asked to exercise a choice if they are going to make a meaningful choice. And I think we need to situate the level at which people have participated in a continuum and not only look at what is happening after a draft has been agreed to. I'm afraid, and it's unfortunate, that the process has not allowed meaningful participation by a majority of the people. We all know what happened in the run-up to coming up with the draft and we may not want to rehash those issues but when you look at the level at which people have participated, it has been contaminated.

GONDA: So is the outcome of this referendum easy to predict then, given what you have said? Is there still a contest?

TUNGWARARA: It's difficult to say Violet because people are going to have to exercise their choice and that cannot be pre-empted because it is a secret ballot but again looking at the context in which the constitution making process has happened I think there are fundamentals which we did not get right which then create an environment where the outcome is unlikely to be legitimate, both in terms of issues around popular participation in its real sense and also legitimate outcomes that are facilitated by an environment where people exercise independent and objective choice - with access to information, facilitated by an environment in which media is actually providing accurate information.

GONDA: Dr. Madhuku, are you as an organisation just criticising the process or you are also criticising the product?

MADHUKU: We have criticised both the process and the content of the document. We have been very critical of the process - that has been widely publicised but our criticism of the content has not received media coverage - and perhaps that is why some people don't understand what we are saying. But we have gone through all; our criticisms on the powers of the president which have generally been retained in the draft, the size of the legislature - it's keeping on ballooning and a number of points that we have raised. We have a document with about 37 points.

GONDA: So are you able to mention a few more since you say you have not been receiving media coverage on the actual flawed document as you see it?

MADHUKU: We are clear that they have retained a very powerful president; there are areas where we even think that the president has more powers than he has currently under the constitution. The country would survive more with a president who is not as powerful as being provided by the draft. The second thing is that the government created in terms of that constitution is very big; two vice presidents, an unlimited number of ministers - dependent on what the president decides what the size of cabinet will be - parliament has been increased - currently the total number is about 303, there will be 350, if you add five ministers that the president may appoint from outside parliament, you will have more or less 355 MPs. For a small country like ours, that is not really desirable.

Then you move onto a provision they have put for the next ten years there will be no by-elections for the president. If the president dies or resigns from office, we will have the party of the president giving us a nominee and so that is not acceptable. If the president dies we should be able to elect a president or at least parliament should be allowed to elect a president.

Then you have issues related to the amendment process: they still provide in the constitution that except for the Bill of Rights and some provisions on land, the rest of the constitution can be amended by parliament with a two thirds majority like we have currently. So you'll have the problem of continuous amendments of the constitution when it becomes law. And so on and we can go on; we have had some criticism given to the way they have formulated the Social and Economic Rights Act.

GONDA: What would you say are some good parts in the constitution?

MADHUKU: I wouldn't want to say that there are any good parts that are different from the good parts in the current constitution. The only one that I can mention offhand would be the inclusion of social and economic rights in the constitution. But those I always qualify them - social and economic rights in a context where you still have a very powerful executive may not mean anything because it's the executive that would decide whether there's money or not. Each of the social and economic rights they are subject to the availability of resources and who will say whether there are resources or not? I think it's likely to be the executive that will say there's no money and that kind of powerful executive will water down the rights. So if you were to insist that I must mention positive points, the only positive point I find in the draft is the Bill of Rights that has been widened to include social and economic rights and some of the civil and political rights have been generously defined.

GONDA: Minister Matinenga what can you say about some of these issues raised by Dr. Madhuku?

MATINENGA: Violet I don't think you'll have a constitution wherever you are in the world which makes everybody in that country happy; it's impossible. So in any country there is going to have to be a decision made by somebody as to what to include in a constitution or not… (Interrupted)

GONDA: But given our past history, why is it good to have a document, as Dr. Madhuku has said, which retains a more powerful executive president; which has a huge government, which has no by-elections for the president and which continues to have a continuous amendment process.

MATINENGA: Let me just address that issue - if you have been reading the papers in this country, you know you had one paper saying that the presidential powers have gone up in smoke; you have one saying that imperial powers of the president are removed; you have another paper saying imperial powers or presidential powers are not interfered with  - so you can see the different interpretations of different people in regards to the clauses of that Chapter √¢‚Ǩ¬¶ I think it's Chapter Five which is on executive authority.

I just want to address one issue where it is said that this particular constitution is weak in the sense that it does not provide an opportunity for the election of a president in the event that the incumbent meets some mishap. What we've done in this constitution is to introduce the running mate clause and in any running mate clause provision, you don't have an election - you are saying that the person who is the running mate automatically becomes the president in the event that the president meets some mishap or something. That is what we have done and the issue of a political party having to look for somebody to succeed an incumbent is a provisional transition.

But generally going to the powers of the president, when you look at the checks and balances which are created - let's look at the situation of the declaration of war, the state of emergency - in all those sections you will notice that the president must report to both houses of parliament and that both houses of parliament, by a two thirds majority must endorse what the president has done. In the event that they don't endorse what the president has done, then the president is obliged to revoke whatever action he has taken and in both instances if somebody is so upset, he is free to take that issue up to the constitutional court. In so far as the Bill of Rights is concerned where it is said 'oh well a powerful president is going to ride rough shod over those rights' - no - we again are not looking at the various arms of government and what each arm of government contributes for the better and good governance of a country. The assertion of a right is not a matter of the executive, it is a matter for the courts.

GONDA: Dr. Madhuku what do you say about what Minister Matinenga has said? He basically says there's no perfect document and on the issue of no by-elections for the president, he said the running mate will automatically become the president in the event that the president is no longer there and also that there are checks and balances created where for example the president will have to report to the legislature. What is your response to this?

MADHUKU: Violet that is a very good question you have posed. In fact when we talk about a democratic constitution making process, we are actually referring to a process where there's debate. The points raised by Minister Matinenga, the points I raised earlier on, we debate them in the public, we exchange views over a considerable period of time, other citizens get involved and so at the end we see whether or not we can say that there has been any checks and balances. And I can tell you there are no checks and balances at all, at all. And I maintain that the executive president in the draft constitution is more powerful than the current president- but where does the debate go? I can keep on saying this, he can keep on saying other points he is raising but this shouldn't be a debate between lawyers, it should generally go down to the ordinary people.

When he (Matinenga) went around, we were following his trips around the country? He was explaining to the people what the draft meant but at the end of it he always asked them to vote Yes and so on and that is problematic. What we would have wanted, why we were requiring more time, was precisely for that point. Let those who are supporting the draft come out in the open and say that but let also those who think that what the minister is saying is not reflective of the situation to be allowed to say it in the media. Now the minister is lucky because he is covered in the media, we are not. The debates we are doing at the moment through your station would not be found anywhere in any of our ZBC stations, not in the Herald, not in the papers. He is correct in saying that one paper will tell you this, another paper will tell you that but there has not been the kind of debate we would have expected.  So I can say in short, I'm simply maintaining what I'm saying but it will not solve a thing. These remain different opinions which are acceptable in a democracy but let those opinions be more widespread and more people participating in it and at the end when you have a proper referendum they should be able to exercise Yes or No on the basis of what they see the balance is.

The running mate issue - he should tell you that they have suspended that clause for the next ten years. When I talked about no by-election, I was referring to the next ten years - we'll get the president from a nominee not a running mate in the next ten years. It will be a nominee of the party of the president. So if president Mugabe wins the next election in July or June and he decides to retire or he dies, then we will just be sitting around, all of us in the country, wait for what the Zanu PF politburo or congress or central (committee) does and if they tell us that it's Mnangagwa or Mujuru or they fight among themselves, we'll just be sitting around until they decide who is going to be our president. That is not acceptable. I've not come across it anywhere else in the world so you can't say that it's a good constitution. We have never had that provision before. In the past we would have an election in parliament at the very least.

GONDA: Let me go to Mr. Tungwarara - are you still there?

TUNGWARARA: Yes, still here, I'm listening very interestedly.

GONDA: Some parts of the constitution like the issue of dual citizenship are confusing and could be interpreted in different ways - do you agree with this?

TUNGWARARA: Yes I do, but let me just comment on the points that both Dr. Madhuku and the Honourable Minister Matinenga made and I fully agree with the Honourable Minister that a constitution is obviously an aggregation of diverse views. So the issue he mentioned about checks and balances, I think is critical to any governance system but when you look closely at the draft that is going to the referendum, I think we could have done more in terms of enhancing and strengthening those checks and balances.

So, for instance, if you look at the independence of critical institutions that are supposed to preside over good governance and democracy; their independence is still not guaranteed. Look at the Judiciary for instance: the president still has powers to refuse nominations that would have been forwarded or people who would have been nominated by the Judicial Services Commission. And when you look also at the fact that the majority of the people on the Judicial Services Commission will be appointed by the president, the independence of that institution becomes undermined.

Then there are other institutions like the Land Commission which is supposed to preside over a very critical and central issue to the Zimbabwean political socio-economic processes and again its independence is not reflected in the constitution in the sense that members of the commission are to be appointed by the president and the policy formulation is primarily done by the minister.

So one would have taken an opportunity like that to actually create independent institutions especially in terms of how they are appointed in order to inspire people's confidence that there will be impartiality but that has not happened and I think it's a missed opportunity.

If you look again at the whole issue around the right to nationality, citizenship rights, which again is a key issue especially with regard to the number of Zimbabweans who have had to leave the country for one reason or another and are going to be impacted upon profoundly by citizenship provisions in the constitution, one - it's a bit confusing and secondly it could have actually taken best practices in terms of what best protects people's rights to nationality.

So for one thing, it falls short in terms of Zimbabwe complying with the African Charter on Human and People's Rights especially as it relates to issues of statelessness because children who are born in Zimbabwe or rather who are born outside Zimbabwe and who cannot get citizenship from either parent are likely to remain, to end up stateless and so that could have been an opportunity to strengthen Zimbabwe's obligations under international law.

Coming to dual citizenship, or dual nationality, the provision is again confusing because the direct reference to dual nationality is made in a clause that says Parliament may pass laws to prohibit dual citizenship for citizens by descent or registration , which would imply that citizens by birth are entitled to dual nationality - but again we have already seen conflicting interpretations with the Minister of Justice saying dual nationality is out, the Prime Minister saying dual nationality is in. So it's those sorts of things that I think, like Madhuku is saying, that if there had been more debate, if there had been more engagement, better clarity would have been brought, but it ended up being compromises that were driven by what I think are partisan interests as opposed to the general good.

GONDA: Let me just ask Mr. Matinenga about that particular issue of dual citizenship. Minister what is the correct position?

MATINENGA: Well the correct position Violet is that with respect to the Minister of Justice, he's not properly interpreting the constitution. In fact even if you go back to the current constitution you will note that we have got the same provision and a lot of Zimbabweans who claim citizenship through birth have taken the Registrar General to court and the courts on numerous occasions stated quite categorically that those persons are Zimbabwean citizens by birth. This is why that section is very clear: that you are distinguishing between persons who are citizens by birth whose citizenship cannot be interfered with by parliament and persons who are citizens by descent or registration.

GONDA: So Mr. Tungwarara, coming back to you, is there a danger that if this constitution is passed this weekend, it can be interpreted in a way that will suit whoever is in power?

MATINENGA: (laughs) Can I just come in again Violet before Tungwarara? I think maybe this is the problem with us Zimbabweans. We have put executive power on such a pedestal and have not realized that there are certain arms of government, there are other arms which are equally important. The interpretation of this clause is not a question of what a particular government is thinking at any given time, this is a matter for the courts.

GONDA: But Minister Matinenga we all know that in Zimbabwe individuals can do whatever they like with or without a court decision or court order, but let me just go back to Mr. Tungwarara to respond to my question that is there a danger that the constitution can be interpreted in a way that will suit whoever is in power?

TUNGWARARA: I think the position that Minister Matinenga has articulated is a position that pertains to a functioning democracy where the interpretation of the constitution and the law is the realm of the judiciary, that arm of government - but I think we need to again situate our particular situation in a context, in its proper context because a big issue that has led also to where we are in terms of threat to democratic governance is the perceived partiality of the judiciary and it has stemmed from the way that members who serve in the judiciary have been appointed. So it's one thing to say that it is the responsibility of the courts to interpret the constitution and to give proper interpretations that accord with the constitutional provisions but it is another thing when that institution's independence and impartiality is not guaranteed. So there is no guarantee that the interpretation of the constitution is going to be done objectively in this current set-up unless there is a true revamp of the judiciary that we saw for instance in the Kenya process where after their constitution, they really went out to revamp their judiciary and we're seeing the direct results of that.

GONDA: Dr. Madhuku?

MADHUKU: The Minister is obviously in agreement - he may not be saying it openly. If you leave everything to the courts you run the danger that if the courts are not independent as Mr. Tungwarara has indicated, then there's problems. I was in court today and I realised that there was no way the judges or five judges were ever going to decide that the president acted unreasonably. To them and the context in which they live, to say of Robert Mugabe that he acted irrationally, is not a decision we have got in this country. Ever since Mugabe became president those judges think that those principles of law which say irrationality, unreasonableness, will never apply to the president. That is the particular attitude of the judges who are not as independent. So if we give the example of dual citizenship, what they have done as the Minister has correctly said is that they have said if you are a citizen you cannot lose your citizenship of Zimbabwe even if you become a citizen of another country but for the rest - to become a citizen by birth it appears to be a difficult thing. They have used the concept of what is called ordinarily resident so if a person is born outside Zimbabwe to parents who are Zimbabwean citizens, the parent must be regarded in terms of the draft as being ordinarily resident.

So when the Minister of Justice was referring to the issue of no dual citizenship I think he had a different understanding of what is meant by ordinarily resident. In my view, most people who are Zimbabweans who are outside the country may not qualify to be regarded as ordinarily resident if they have been out for some time so that is a problem. I think it could have been made clearer; this kind of conversation that we are having now should have been the kind of conversations which people should be involved in and you get the drafters and others taking into account those debates. That's what happened in Kenya, that's what happened in South Africa. The constitution making process benefitted immensely from genuine debate.

GONDA: You have had so many people asking you what is the alternative, so can you spell it out for us and also what happens…

MADHUKU: The alternative now is very clear, clear, clear - is to reject this document. If people were to take heed of that, just reject it, we go to the elections in terms of the laws that exist now which are more or less the same laws that we get in the draft, then, thereafter, we do a careful constitution making process led by an independent body. In a year or two after the elections we should be able to get a genuine constitution. That will be the way forward as I see it.

GONDA: And what happens to the NCA if there's a majority Yes vote?

MADHUKU: What happens to the NCA if there is a majority Yes vote?

GONDA: Yes.

MADHUKU: Why should the NCA be affected by the referendum? The NCA is an organisation that exists to push for a democratic constitution; if the people believe that this document is a democratic one and they vote Yes, that doesn't change the NCA view of that document. Our view of the current constitution was never affected by the majority. When we started the NCA, you were there Violet in 1997. If we'd had a referendum in 1997 you would have been surprised that the majority of the people in this country would have said we have a good constitution in place. So even when we have a constitution regarded by those participating in the referendum on Saturday to be good, the NCA will not change its perspective that it's a bad constitution! So we will continue. We might change our call for a new constitution tomorrow; we might change our strategy now and start educating people extensively on what a good constitution entails and then thereafter we go to a new process. So we might use the next one, two, three years just doing civic education without calling for a new constitution and when we realize that the public is now clear, we'll start again the game. We will never stop. The NCA will never stop until our country has a democratic constitution in terms of how we see it.

GONDA: Minister Matinenga some people say if the people vote No then it means that the GPA is still valid, is this the case? If there's a NO vote in the referendum, what happens?

MATINENGA: Well it simply means that the current constitution carries on. It is the current constitution which has Amendment Number 19 created an inclusive government and as to what's going to happen to that inclusive government - I think it's more of a political process rather than a legal process.

GONDA: So we may just continue with a second GNU?

MATINENGA: (Laughs) Look I do not know what format it will take but what it means is that we have then to go to an election in terms of the current constitution and what the parties then do thereafter, to be honest, I don't know. What I've said previously is that from my assessment, you know and I make this statement in all honesty and seriousness, we may be heading for another GNU.

GONDA: Did you say we may be heading for another GNU?

MATINENGA: Yes, yes, yes, yes. I don't think this is the opportunity for me to go into the reasons why, I opine in that manner, but I have explained my way of thinking and I think if one is to look at our particular environment on what we can and cannot do, then that has to be looked into in a very serious manner.

But just before I go, I don't hold a brief for the Judiciary in this country but I think this constitution has certainly done much, much more in trying to establish a judiciary with a modicum of independence. Yes the president does appoint but what you've not been told is that the persons who would want to be judges are going to be interviewed; it's going to be a public process. Yes he may reject the list but if another list is given to him then he must make an appointment from that list. But another important issue which looks at the independence of this institution is that you now have term limits. Currently you lived under a system where your allegiance is going to be towards one person for a period of you don't know. But now you know - look this person is going to be here for ten years and he goes away and therefore the element of patronage I believe which would have affected a performance of a judge has now been addressed.

GONDA: Mr. Tungwarara what do you make of what Minister Matinenga has said that we may be heading for another GNU?

TUNGWARARA: I'm not sure of that position. I respect his opinion but for me I think there seems to be a misplaced perception that a Yes vote for the draft constitution will deliver a credible election. That is not going to happen for a number of reasons. One, the GPA I envisage a situation where certain fundamental reforms were supposed to be taking place in tandem with the constitution making process. So the constitution making process was not supposed to be an exercise in a vacuum. That has not happened so the political environment that is hostile to democratic engagement still exists and in terms of the dates that are being touted for the presidential, parliamentary and the harmonized elections, there won't be sufficient time to undertake the necessary reforms. So the point that he is raising about the judiciary having to be publicly interviewed and people being in place so that if there are disputes you have impartial people presiding, will not happen. So we are likely to have again a contaminated electoral process which the constitution is not going to impact on and where that will leave us is anybody's guess - it could be another 2008.

GONDA: The principals issued a directive that the Zimbabwe Electoral Commission had no right to refuse anyone the opportunity to observe the referendum but I understand that ZEC has said that ZimRights has a pending court case related to issues to do with elections and therefore will not be allowed to observe the referendum. Is this a good sign coming from ZEC? Are they trying to act independently of the government?

TUNGWARARA: No. Again it goes to the fundamental issue that I'm raising in terms of the context and environment within which all this is happening. So again the very evident increase in terms of onslaught against organisations for one reason or another that are perceived to be doing unlawful acts and so on and so forth doesn't auger well for a context in which the premise is being given to actually allow for robust engagement as opposed to limiting it. Yes people have to abide by the laws but I think what we are seeing is no different from the repressive environment that a lot of organizations have been fighting against in order to have an environment where people freely exercise their choices. So it doesn't inspire a lot of confidence and again the institution of ZEC in terms of its independence and impartiality I don't think it's guaranteed at this stage.

GONDA: Minister Matinenga it possible that we may head for another GNU even if the people vote Yes?

MATINENGA: When I spoke about the GNU, this was a post-referendum scenario. I am confident that people or the majority of people will vote Yes and that we have a new constitution with time. But my view on the potential of another GNU is actually premised on the outcome of a political/legal process. Are we going to have an election which is not challenged? I think that is important. Let me say that I agree with what Tungwarara says about, not in the words he used, but I'm concerned that ZEC would have adopted the attitude it did towards ZimRights. To be honest I thought that at this time in our history, in our democratic development we need to think outside the box and with respect I think this also applies to members of our security services. You notice that people were being denied permission to hold meetings to explain the draft constitution to the people. I really thought that was unfortunate. And when I moved around I made the point that people must be allowed to criticise the constitution if they wanted to - in fact when I was in Gweru a particular chief asked me what do I do when I see these people come and this is what they say, and I said those people have got a right to stand up and say what they need to say because the constitution affords them that right.

GONDA: A final word Dr. Madhuku especially on the issue of a second GNU where we heard Minister Matinenga say we may be heading for another inclusive government.

MADHUKU: I think he's being very polite there. They are actually working on having a new GNU. The GNU is quite evident when you get all three political parties campaigning for a Yes vote in the referendum. All three political parties are agreeing that the time given for the people is completely irrelevant. Some people wanted more time but they have not even been complaining about all things that have been happening and so on. So what we can say whichever party wins the election I think would want to stay, in the name of what they call stabilisation, which is why you have got that clause that says that in the next ten years we won't have a presidential by-election in the event of the death of the president. It enables whichever party wins the president to appoint one of the two vice presidents, a person from the other party. I mean let's take the hypothetical situation where President Mugabe wins the election as president; it would be perfectly okay to appoint the current prime minister as the second vice president because he will not be president under the constitution. Those are the indications which we see in the draft for I think. I am very much convinced that a GNU is more or less likely whatever the result. If they are currently working on a Yes vote, go to parliament, I think none of these parties would really get a very much outright majority in the houses.

GONDA: Dr Lovemore Madhuku, Minister Eric Matinenga and Mr. Ozias Tungwarara thank you very much for talking to us on the programme Hot Seat.