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Cleaning up the mess: Alterations required to the proposed Constitutional Amendment 19
Research and Advocacy Unit, Idasa
February 03, 2009

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Introduction

Following the MDC's victory in the March elections of 2008, and the illegitimate and unrecognised run-off presidential election of June 2008, under pressure from SADC, Morgan Tsvangirai agreed to enter into negotiations with ZANU PF to resolve the political impasse in the country. The negotiations, Tsvangirai stated in an interview on South Africa's etv, were "not about power sharing" but "the restoration of democracy and the return of the rule of law". "No deal" he declared, "is better than a bad deal". Despite these declarations, and despite the fact that Mugabe's election had not been recognised by SADC, MDC-T nonetheless entered into a power-sharing accord with Mugabe in September 2008.

The key Article in the September agreement was Article 20 which set out the structure of a new government. However, the document had clearly been drafted in haste. It contained gaps and ambiguities in essential provisions. The gaps and ambiguities would need to be filled and resolved by reference to Zimbabwe's existing Constitution. Since the Constitution centralises and vests an enormous amount of power in Mugabe, Mugabe's powers remained largely unaffected by the agreement. This meant a return to democracy, a necessary condition before the release of western aid, was unlikely.

The MDC however, had an opportunity to resolve this problem through constitutional amendment 19. The proposed amendment could be drafted in such a way as to fill the gaps in the structure of government and to resolve the ambiguities in a manner which led to a reduction of Mugabe's power and thus a more equitable power sharing arrangement. The negotiations over constitutional amendment 19 were thus expected to be protracted. Instead, presumably once more under pressure from South Africa, which was concerned about spill over of the cholera epidemic which had just taken hold in Zimbabwe, the MDC agreed to the content of constitutional amendment 19 with little debate. The proposed amendment, in the main, simply provided that Article 20 (dealing with the structure of the new government) be incorporated into the present constitution wholesale. As a result the gaps and ambiguities remained and there was little reduction of Mugabe's powers. Furthermore, the amendment when read with the constitution, contains several clauses which contradict each other. The document is not the precise legal document required to amend a constitution, as parliamentary legal or constitutional committees, if in place, would be quick to point out.

Mugabe demonstrated that he remained "in the driver's seat" by unilaterally allocating ministerial portfolios, appointing provincial governors, the Governor of the Reserve Bank and the Attorney-General which he can do without the agreement of the MDC under the September agreement, but not in terms of the proposed amendment 19. That amendment, of course, is yet to become law.

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