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Hot Seat interview with Eric Matinenga and Lovemore Madhuku - Zimbabwe Constitution debate
Violet Gonda, SW Radio Africa
May 29, 2009

http://www.swradioafrica.com/pages/hotseat020609.htm

Read Part 2 of this interview here

VIOLET GONDA: Eric Matinenga, the Minister of Constitutional and Parliamentary Affairs, and Dr Lovemore Madhuku, the Chairman of the National Constitutional Assembly are my guests on the Hot Seat programme this week. Let me start with Minister Matinenga, what is the state of the Constitutional reform process right now?

ERIC MATINENGA: Violet, the process as you know is governed by the provisions of Article 6 of the Global Political Agreement. The starting point in that Agreement is the establishment of a Parliamentary Select Committee. That Committee is now in place and that Committee is earnestly making preparations for what we call the First Stakeholders Conference which must be held about mid-July. In making these preparations, the Select Committee has firstly chosen three co-chairs; it has also established a number of draft committees in order to drive the process through to the First Stakeholders Conference.

Amongst these committees is a budget committee for obvious reasons, there is a stakeholders committee which will seek to establish who is a stakeholder and how these stakeholders are identified. It has also established a management committee again for obvious reasons so that it manages its life up to the First Stakeholders Conference. It is also going to be doing some outreach programmes between now and the First Stakeholders Conference. These outreach programmes are meant to make sure that civic society, stakeholders are part of the process from the very beginning. You know they are also doing a draft plan and again this draft plan is going to be put to various stakeholders and civil society so that anything which has been done by the select committee up to the First Stakeholders Conference is done through the ownership of the people of Zimbabwe .

VIOLET GONDA: So what is the budget for this exercise?

MATINENGA: The budget, or the budgets are going to be different. We look at the budget between now and First Stakeholders and the budget after Stakeholders will be entirely different. In fact there are going to be, let me say, three draft budgets. There is a budget between now and First Stakeholders', there is a budget for the First Stakeholders proper and there is a budget post-Stakeholders'. The budget has not been definitively finalised yet because as I said earlier on we are looking at an outreach programme in preparation for the First Stakeholder so it is a budget which is changing every time, unfortunately on the upward side

GONDA: But can you give us a rough estimate?

MATINENGA: We are looking at, if we go to the First Stakeholders, we are looking at something in the region of US$1.5 million.

GONDA: And after Stakeholders?

MATINENGA: Sorry, after Stakeholders, it's virtually impossible because we don't even know the numbers at Stakeholders and in particular it is at the Stakeholders, that the issue of committees is going to be determined and our budget will now have to be worked having regard to what the stakeholders, civic society and everybody else has said must be done arriving out of the First Stakeholders. Obviously it's going to be more than US$2 million.

GONDA: So what about the issue of the repressive laws because many people have been asking about this. Where are you in terms of unbundling repressive laws like the Criminal Codification Act which is where the draconian Public Order and Security Act is stuffed?

MATINENGA: Just today Violet, we met as Council of Ministers and there is a draft legislative agenda circulated by the Prime Minister's department which identifies these various pieces of legislation which must be addressed in order that we seek to make our society freer so that, not only that during this process but for time to come, we are in a position to associate freely, we are in a position to express ourselves freely. Let me also say that on Monday next week, the committee on Standing Rules and Orders, which committee is tasked with the responsibility of putting in place the various commissions is meeting for the second time in order to put final touches to the establishment of the various commissions - your Media Commission, your Human Rights Commission, your Anti-Corruption Commission and ZEC (Zimbabwe Electoral Commission). So while the constitutional process is progressing as I explained, we are also making sure that the various issues which are necessarily attendant to having a properly participative constitutional process are being attended to.

GONDA: Why has there been such a long delay in repealing these repressive legislations, especially when you don't actually need to wait for a new Constitution to scrap these Acts?

MATINENGA: Let me differ with respect. We've been in government now for about three months and when one has regards as to where we come from, one cannot expect that things are going to change in a day or a week. Yes maybe things could have moved at a quicker pace but certainly we (inaudible) to our responsibilities and these issues which are a cause of bother are issues which are being addressed.

GONDA: But you know your critics say that your party in particular is not getting its act together fast enough to start this debate of the new Constitution and say that for example you are actually in danger of losing your majority in parliament especially as you have under six months left when the moratorium on by-elections expires. How do you respond to this?

MATINENGA: I think when people talk about a democratisation process, people should not look at one aspect of this process. People should look at myriads of things which must be attended to and you know it is critical that whilst people must criticise - it is healthy that they should criticise - people should also seek to look at where you are coming from. We are coming out of a situation, nearly a war situation in Zimbabwe and coming out of such a situation one cannot expect that immediately the following day metaphorically then things should dramatically change because that is not what life is all about. Life is slightly different unfortunately.

GONDA: Your critics say Zanu-PF is in no rush to change some of these laws since it created them and you mentioned a bit about media reforms and we all know that one of the most important aspects for opening up the democratic space is media reform so why is there this delay? What is the delay about? What are the challenges you are facing on this?

MATINENGA: Violet, there is no delay. You specifically made reference to media reform, the nature in which our laws are made up is that there should be a Media Commission and that Media Commission is established by the Committee on Standing Rules and Orders, so firstly you have to put in place that Committee and then that committee will then have to meet. It has met once; it is meeting again on Monday in order to put the final touches to the establishment of one of these commissions.

GONDA: But surely, the government was formed three months ago as you've also said on this programme, why is it they have only met once for such an important process like this?

MATINENGA: Violet, I tell you there are so many demands on this government. Yes, media reform is one of the important components or one of the important issues which we have to address but it certainly is not the only one and the fact that this committee has met once and is meeting for the second time does not mean that it minimises the issue of media reform, no. In fact what happened when the committee met the first time it established a sub-committee. The sub-committee then met in order to suggest procedures regarding the manner in which this commission must be set up and the sub-committee obviously will then make recommendations to its main committee which is meeting on Monday - in order to assess the recommendation and to move forward. So it is not a question of sitting on our backs and doing nothing, no. Something has been done and is being done.

GONDA: What is the legal status of the Media and Information Commission and do journalists really need to be accredited because there seems to be confusion over this issue now?

MATINENGA: Yes, there has been two positions; one stated by the Prime Minister and one stated by the Minister of Media, Information and Publicity and the Prime Minister has clearly indicated that he's going to be speaking to the relevant Minister in this regard so that there is a consistent position on this point.

GONDA: So what is the position?

MATINENGA: The consistent position, as I am aware of it, is the one stated by the Prime Minister.

GONDA: Can you just elaborate on that?

MATINENGA: Now the Prime Minister has indicated that the Media Information Commission which used to be responsible for these issues in regards to our particular environment is no longer effective and until such time that there is a Commission which is going to be set up in terms of the new dispensation, then that Media Commission which used to operate can safely be ignored.

GONDA: So why is it that the Minister of Information Webster Shamu and even the President's Press Secretary, George Charamba insist that journalists need to be accredited? Why are they contradicting the Prime Minister on this?

MATINENGA: I wish I could respond to that question but unfortunately I can't. They obviously appear to be working on a different wave length to what the position is and what the Prime Minister is saying. But what the Prime Minister has said is obviously going to be followed up and I'm aware that the Prime Minister is going to be speaking to the relevant Minister in this regard.

GONDA: OK. Let me bring Dr Madhuku into this discussion. Dr Madhuku, first of all why is the National Constitutional Assembly so against the government constitution making process, since the GPA has clearly defined a process of consultation? What are your concerns about the process in the present form?

LOVEMORE MADHUKU: Our concerns are very clear. We have always made these concerns not just in relation to this current process but also in relation to previous processes. So we are simply restating positions that we have held as an organisation from our formation some 12 years ago. We believe that a constitution making process must not be led by the government of the day or the political parties who dominate the government of the day. I think the process must be led by an independent body which is constituted by various stakeholders but that body must not just be independent it must also be seen to be independent. And one way of ensuring that there is an independent process is to get a commission, normally chaired by a judge or a former judge or some other independent person but for the NCA now we are insisting on a judge or a former judge and you can get those policies in that board and others.

This current process was brought to the country by the political parties who were negotiating the so-called Global Political Agreement. That is a clear indication that it is a political party-led process of making a new constitution for the country. Even if it then involves people being invited by the political parties to join it, it doesn't change the fact that it is led by politicians. I think I heard from the Minister there that the political parties who are in the Select Committee have actually set up a sub-committee that they call a Stakeholders Committee or Stakeholders Conference Committee and he said that the purpose of that committee is to then look around and say who is a stakeholder, who is not.

So even the definition of who qualifies to be a participant of that so-called Stakeholders Conference will be decided by the authorities. They may do pre-Conference consultation but at the end of the day they are going to send out invitations themselves to the people that they would want attend and that is wrong as far as we are concerned. So our concerns are based on the process which we believe is dominated by the political parties. I must quickly add that the political parties themselves may have realised that they were dominating the process, they tried at some point to change some aspects, for example trying to get an independent chair for the Select Committee. They failed that. We still don't have that and so on and so it is a clear compromise process so the NCA is opposed to it.

GONDA: But you know some people have said that as the NCA, you really need to unpack this notion of a people driven process of yours so that your alternative is clear because some may say because it's going through parliament, the parliamentarians are representatives of the people. So what happened though to the NCA draft constitution of 2000 and how different is the situation now and what happened in 2000?

MADHUKU: I think you are asking me that question - the answer should be clear. The 2000 process is no different from the current one in fact the current one is worse than that 2000 one. In 2000 we had a Constitutional Commission which was chaired by a judge of the High Court Justice Chidyausiku - we had problems with his independence, but the Commission then had about 400 members. More than half of whom were not members of parliament. Each member of that Commission was equal to the other, in other words, there was not a super group made of members of parliament and another sub-group made of civil society. The current one says you have a Select Committee, everyone else is sub-standard, you are actually supposed to be in a sub position, and you report to the Select Committee so there's this superior group and inferior group and so forth.

The 2000 one didn't have that. The problem then in 2000 was that the President at the end of the process did change some provisions of the draft that had come from the Commission. In the current process there are so many opportunities, not just for the President but for other people who now sit in a group of three, they are called Principals - who have a lot of powers. And one of the powers exercised so far is that they will not accept an independent person to chair the Select Committee. So you will have so many people changing whatever the people have said even though there are assurances from the Minister and others that won't happen. We in the NCA don't believe that, we don't trust it, we would not take the risk of participating in a process where we realise that there are so many frameworks for the tampering of the peoples' views.

GONDA: So what are you advocating exactly? That the 2000 NCA document be part of the debate or a consolidation of the two documents?

MADHUKU: We have not said any of what you are saying, we have not said that. That is obviously not acceptable. What we would want which we have advocated and have expressed this to the government; we are not saying this is what must happen, this is our view as the NCA. Of course some people may not accept it; they have the freedom not to accept it. We also have the freedom to insist on our process. We believe that there must be established, an independent Commission. The establishment of that Commission can be facilitated by the government in discussion with civil society and come up with a board of between 400 and 600 people in the country who are generally acceptable to both the government and civil society. That body becomes an independent body that then takes the whole process of coming up with a new constitution, ending with a referendum.

GONDA: But Dr Madhuku, you have already started a 'Vote No' campaign, so what happens if the parliamentary process comes up with the same constitution as yours, something that you actually approve of?

MADHUKU: It is a very serious media misdirection to say that the NCA has already started a 'Vote No' campaign. I mean if you go anywhere in the country, you won't see any 'Vote No' posters, no 'Vote No' pamphlets, no Vote No meetings and so forth. There's no such thing. What the NCA is saying is that it will campaign for a 'No Vote' when the time comes. At the moment we are in the process of trying to persuade the authorities to embark on an acceptable process to us, acceptable to the majority I think of those who believe in a process not led by government.

So at the current stage we are advocating for an independent process which we believe is what we will call a people driven process. But of course the government is going ahead. We will campaign for a 'No Vote' if the referendum is called; there is no 'No Vote' campaign at the moment. At the moment we are on the underground, talking to people and advising them that the current process is not acceptable.

GONDA: Minister Matinenga, your thoughts on this and also, hasn't the NCA got a point here that even if to some extent your process is people driven, parliament, that's the politicians still make the final decision at the end of the day?

MATINENGA: No that's not the position Violet. Let's start from the very beginning. There is no single model for making a constitution and it is not the identity or the institution which is of paramount importance. It is what that institution does which makes the process people driven or not. Let's look at South Africa . The South African constitution was a constitution initiated and driven by politicians. The ANC is a nationalist party but it is what they did that made their process people driven and when you look at the situation in Zimbabwe today there are no patriots and super patriots. So there is not going to be any difference between a member of the Select Committee and a member of the sub-committee because the aim is the same - the people want to see to it that they come up with a constitution which is representative of what the people want. So nobody is going to make a decision on behalf of the other. It is the people who make that decision. At the end of the day, right at the end, there will be a referendum where everybody will either endorse that document or will reject it, so it's simply not true, with respect that there are persons who are going to make decisions for others, no.

GONDA: What is your view then on the NCA stance -the stance that the NCA has taken?

MATINENGA: What I have said all along is the NCA is an organisation in Zimbabwe which is free to state its views and I've also said, and I say this honestly and earnestly that yes, we may disagree with the NCA, I hope that at the end of the day we nevertheless find areas of convergence. But that whatever differences we have with them we must protect their rights to say what they believe in. And I say again I hope that at the end of the day we will be able to converge and agree on what we should do because this is the last opportunity for the people of Zimbabwe . If we lose this opportunity, I'm afraid that it may take quite a bit of time for another opportunity to avail itself for this very same purpose.

GONDA: Dr Madhuku?

MADHUKU: Yes I think that I need to respond to some of the points that the minister has raised. There are so many misleading points that he is raising there. The first one is that the example given of the South African process, it is not true that the South African process was a politician driven, yes of course the politicians were involved, but there are so many elements there. The South African constitution in 1993, which was the interim one, there was no parliament then at the time that interim constitution was adopted which then led to the election of Nelson Mandela as President. That was the CODESA process - yes there were political parties but there were so many other South Africans who participated in that process.

And those South Africans gave the South African parliament a list of principles, 34 of them, and parliament was then asked to make a constitution in accordance with a set of principles made not by parliament but others who included politicians. And then once the parliamentarians had done it they were supposed to pass that constitution to a constitutional court made up of 11 independent judges. They certified the constitution and on the first point they rejected it and said; 'your constitution does not correspond with the principles.' Then they had to redo a number of areas and then after that certification.

There's no such thing as independent process here. The politicians move from the select parliament process, parliament, then they have the referendum where I am sure they will distort the campaign process. So although we agree that ultimately really it's a question of what the Zimbabweans say, we don't have to reach the stage of referendum to determine what Zimbabweans think. I think the government must be a leader enough, they must lead properly, and they must govern properly by allowing that legitimate concerns of citizens are taken on board. So if the Minister says well the NCA has a right to say what it wants to say we will protect it but I think it doesn't really auger well for good governance, for a government to throw away a very clear point that the making of a constitution must not be led by the government of the day. Matinenga is Minister today, tomorrow he is out of government and so on and then the next person is President, tomorrow they are out.

But if we create a precedent to where those who are in government at a particular time decide to use their popularity to bring about constitution making processes then we might have as many constitutions as we have new popular politicians and that is the point that the NCA is making. I think we should try and accommodate a process that has the consent of a large majority. I know that what the Minister has not said which his party and those in Zanu-PF are saying is that 'well the NCA does not represent many people, it has a few people' and this is the argument that we had in 2000. So we are going through the same cycle again because the only reason why they are not listening, not even taking into account the concerns we are raising, I think it's because as politicians they believe they have the power and when it matters at the referendum they just go to their rallies and say Vote Yes which is I think a very big mistake. But the NCA thinks that it will be important for us to reach some agreement. If we cannot we will definitely go for a No campaign and then the people will decide

GONDA: Your thoughts on this Minister Matinenga and also is it true that you're not listening to your former allies, the NCA?

MATINENGA: No that is not true. I have shared more than one platform with Dr Madhuku. Dr Madhuku, the last platform I shared with him, declared at the meeting that he was not going to be party to this process. He has already staked his flag to the mast. And I said look, don't close the door. But he said we have made a point as NCA and we are sticking by this point. He actually said no matter how you people want to persuade me, I'm not going to be party to this process. So it's not true that we do not want to engage, we want to engage.

And let me just go back to the South African position, what happened in South Africa , and I'm glad Dr Madhuku concedes that the interim constitution was a political constitution, a constitution led by the political parties. It is those political parties who then set the parameters of how a constitution was going to be made. It is those political parties who said it is the First Assembly which is going to be turned into a constituent assembly in addition to a legislative assembly. What we have in Zimbabwe Violet is a mini constituent assembly and it arises out of the peculiar circumstances faced by Zimbabwe at the time. So there is no difference and it is not true that people are not going to be involved.

As he properly said at the very beginning, Article 6 clearly provides people be party to this process at the Stakeholders that they form part of the sub-committees. It is up to the people to determine how many sub-committees they want. It is up to the people to determine the themes, the subjects which are going to be covered by those sub-committees. It is not the select committee with respect. So I cannot understand the position that 'well we are being sidelined.' Nobody is being sidelined. We want everybody to participate and would be glad if people really come up and participate because it is their right and Article 6 makes provision for that.

GONDA: Bearing in mind though of what happened in the past Minister, what guarantee is there really that Zanu-PF will agree if right now you can't even get them to get rid of the Reserve Bank Governor, Gideon Gono? Will Zanu-PF really agree to a constitution that limits their powers, for example?

MATINENGA: Violet, you are in a political process OK? No matter what we would have done, no matter what institution we would have set up, if the feeling is that it is going to be sabotaged by Zanu-PF at a particular stage, Zanu-PF will still do so. And my point is this we are now in a different political matrix. You know that in 1979 when President Mugabe set up this commission, President Mugabe was not obliged at law to accept what that commission did or said or recommended but this is not a position now. The position now is entirely different and there is no ways that Mugabe can now dictate the other two political parties and to the generality of the Zimbabweans as to what they should do. Because when it comes to the constitution it is no longer about the three political parties it is about the people of Zimbabwe .

GONDA: But when you say we are now in a political matrix and that things are changing, to what extent are they really changing when even on this programme earlier on, you couldn't answer why the Minister of Information or the Press Secretary George Charamba actually defied Prime Minister Tsvangirai's statement that journalists do not need to get accredited, there's no need for accreditation for journalists. So to what extent have things really changed?

MATINENGA: Look Violet, we are coming from a situation where people had completely different and differing mindsets. It's going to take time to have those people singing from the same hymn sheet. I did say earlier on, one would have wanted that things would have changed for the better in a much quicker time but this is the situation we find ourselves in and it's taking a bit of time but these issues are being addressed and what we should really ask ourselves is; do we really have any other option but to try to work within these agreements and hope. Because if you continue talking, if you continue talking and if you give yourself time to talk, sooner or later you'll come to an agreement and that is happening in Zimbabwe now.

GONDA: And stay tuned for a continuation of this intense debate on the constitution-making process with Constitution Minister Eric Matinenga and NCA leader Dr Lovemore Madhuku. The frank discussion includes the issue of the plan to divide Zimbabwe into five regions. Is devolution a consideration for the constitution-making process?

Read Part 2 of this interview here

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