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Seat interview with Eric Matinenga & Lovemore Madhuku - Part
Violet Gonda, SW Radio Africa
June 05, 2009
1 of interview
Gonda: Welcome to Hot Seat and the second part of the debate
on the constitution making process with Constitution Minister Advocate
Eric Matinenga and NCA
leader Dr Lovemore Madhuku. Last week the two panellists differed
sharply on who should spearhead the making of Zimbabwe's new
constitution. There have been concerns that if the NCA boycott the
government led process, they could miss out on a perfect opportunity
to act as a watchdog or guardian of the people's wishes. In
this last segment of the programme, I started off by asking Dr Madhuku
for his response to these concerns.
Madhuku: That's a very mistaken view. We are trying
to build a democracy and one of the conditions of a democracy is
diversity of views, citizens have the freedom to hold different
opinions, so I don't understand what is meant by losing an
opportunity. I think that we are not just making this statement
from the air, there is a substantial body of Zimbabweans out there
who believe in what the NCA say and that viewpoint and that approach
has to be respected.
We're clear that
the NCA is not advocating for a no constitution. The NCA wants a
new constitution but which is genuinely emanating from the people.
So what will happen is that if this process unfolds and if the Minister
is right that Zimbabweans will participate and that their views
will be accommodated and that then we will get a perfect constitution
coming out of that process, then Zimbabwe has a new constitution
coming out of a process that the Minister has in mind. But the NCA
believe is that is not what is going to happen and there will be
a distorted document produced by the three political parties and
we believe that Zimbabweans will reject it.
So there is no question
of any opportunity being lost here. We will have a new constitution
but it will be made after the rejection of this one. That is how
we see things, how we see the future, so we are not missing an opportunity.
I think that those who say we will lose an opportunity just see
a one-way traffic, a new constitution coming out of this process
which is suitable for Zimbabweans; we don't believe you will
ever get a suitable constitution which comes from politicians.
Let me go to Minister Matinenga, if there is no consensus, how will
you hope to survive from a process that takes you away from your
traditional allies like the NCA, the Zimbabwe
Congress of Trade Unions and the Zimbabwe
National Students Union?
Matinenga: You know Violet, let's accept first things
first; the majority of people in the MDC, in fact in both MDC formations
cut their political teeth as members of the NCA, as members of the
ZTCU and as members of these other organisations. So these people
never want to sever ties with their allies and that is the point
we've been making all along - that we want to go into this
together and we have been sticking to our allies. And I can tell
you that there have been quite a number of our allies, our friends,
who have actually placed adverts in the papers indicating that yes,
they may not be happy about one or two things in this process but
this process offers the only opportunity to change the course of
this country. I'm sure that as we talk more and more, the
majority of our allies will appreciate what we are trying to achieve,
will appreciate that this is an opportunity which we can't
lose and exploit for the betterment of this country.
And also Minister, how inclusive is your constitutional making process
in terms of reaching out to the Diaspora?
Violet we, both the Select Committee is I believe in the process
of setting up a web site but I can definitely tell you that as ministry
we are in the process of setting a web site, I think it will be
ready in about a week or two weeks so that there is this correspondence
with the Diaspora. I'm also in the process of seeking to arrange
meetings with our Diaspora population in South Africa. You'll
appreciate that we are unable to visit each and every person out
there but we accept that our South African neighbour has the biggest
population and we are going to be engaging them as we go along.
Can you tell our listeners a bit about the Kariba
Draft and whether or not it is relevant to the current exercise?
Let me take you back Violet to the question you asked about the
NCA draft which was done I think in 2000 or so. The position is
very simple, I have stated this position, one of the co-chairs of
this Select Committee has stated the position - the Kariba
Draft is just at the same level as our present constitution, the
1979 Lancaster constitution, it's at the same level as the
NCA draft - exactly the same level as the 1979/2000 draft. Obviously
it is going to be looked at, it is not going to be the determining
factor, it is not even the beginning, in fact if I quote the words
of Paul Mangwana, one of the co-chairs, he clearly put the icing
on the cake and said 'look the Kariba Draft is not an exercise
of the people, we are going to start afresh.' That is the
Senate committee speaking. So the Kariba Draft is going to be considered
just like any other draft, if it is placed before the Senate committee
by any stakeholder who so wants to place it before the Select committee
or before any sub-committee which is dealing with that particular
Dr Madhuku, your thoughts on this Kariba Draft and correct me if
I'm wrong, but your organisation has rejected the Kariba Draft
Constitution, is that correct?
Very correct. I think that when the Minister makes those statements
that he is making, we don't believe that is what will happen
what he is saying. What we believe will happen is that at the end
of the process, you'll get that Kariba Draft being the draft
that will be used. It doesn't matter what they say in the
Select Committee, what the Minister says etc, they will always say
these things. If they didn't want a Kariba Draft, if they
wanted to start afresh as he is saying then they should not have
insisted on a process that they are controlling. The whole point
of controlling that process is obviously to control the process.
I do not understand it - if the politicians are very genuine that
they want a new constitution which will be a product of what Zimbabweans
really want then I don't see why they should say there should
be a committee of parliament.
So he may say what he
is saying but the Minister is not the main player in this game,
the main players in this game are the President of the country and
maybe the Prime Minister - and my suspicion which is borne by political
events on the ground is that the President will ultimately prevail
in this matter, the way he has prevailed over the matter of Gono.
He spoke (about Gono) just a few days ago, very clearly and in the
way we are used to for 28 years and to say that the political matrix
has changed I think obviously is to very simplify it.
But anyway we are debating
these things, there will be that Stakeholders conference which the
Minister is talking about in about one and a half months from now
and I think from that stage we will begin to see whether these positions
by the politicians would be realised. I think that there's
too much debating on this issue, sooner or later we will see the
reality on the ground. But our position is that we don't trust
those politicians and that's why we don't want them
to lead it. So we don't trust their statements.
Minister Matinenga, do you have anything to say on this?
Violet I can understand the suspicion by people of this country
but I think the important point made by Dr Madhuku is that let's
wait and see what happens at the First Stakeholders Conference.
I think it is at that Conference which is really going to disabuse
a lot of people about a lot of misconceptions. And I can say that
from what I have seen as to what is happening, people realise that
this is a genuine process which is going to take all Zimbabweans
Right and also discussing a bit about some of the issues that we
may find in this new constitution, what about the separation of
powers between the executive, the legislature and the judiciary?
How prominent a feature is this question?
Well Violet we are talking about process now you are on issues of
content. I think in every constitutional making process when you
are looking at content, there are basic issues which stick out like
a sore thumb which must be addressed but one does not want to pre-empt
these issues but safe to say, that in general discussion with people
those are issues which always come to the forefront and I am sure
that those will be adequately addressed at content level.
So right now you are not ready to discuss it on content level?
No of course not. I don't want to give the impression that
I am dictating the form of a constitution which must take place.
It's really not my domain and I tend to disagree with Dr Madhuku
when he says that this is really going to be an issue between, in
the main, Mr Tsvangirai and Mr Mugabe. This is an issue which is
going to engage the generality of the people of Zimbabwe and basically
people know what they want. They've gone through this process
in 1999/2000 and they are revisiting those very same issues and
I'm sure that they will include in that document those very
pertinent and common and internationally accepted standards which
must be contained in every constitution.
You are the Minister of Constitutional Affairs but can you explain
to our listeners what your role is in this because we have on the
one hand the Parliamentary Committee that is going to report to
the Speaker of Parliament, so where do you come in?
Yes, yes. I think this is an issue which has caused a bit of misrepresentation
particularly in the Zimbabwean press, some quarters of the Zimbabwean
press. The relationship between my Ministry and Select Committee
is the similar relationship between Ministry and its permanent secretary.
The Select Committee is implementing the process and the Ministry
as representative of government is responsible for policy direction
and in terms of good international practice we have said that the
Select Committee must not be interfered with, it must be left to
carry out the process. But as government we have got the responsibility
to see that in implementing that Article 6 process, that Select
Committee is properly funded and government is not going to shy
away from its obligations in that regard. That is what happens in
the region and that is what happens internationally. It is the responsibility
of government to fund and direct policy but to leave that Select
Committee independent in its implementation of Article 6.
The only difference is
that in implementing that policy and in following good regional
and international practice, Ministry representing government is
not going to be seen and is not going to be interfering with that
process. That Select Committee should do what it has to do, it should
come to the First Stakeholders Conference, and those sub-committees
should do what they have to do without interference. This is why
I said I disagree with respect when Dr Madhuku say at the end of
the day the people who are going to make the decisions is Morgan
Tsvangirai and Robert Mugabe. But having said that it is also regional
and international practices that in any constitutional making process
the government of the day must fully and properly fund that process.
The government of Zimbabwe is going to do the same in this process.
Dr Madhuku, in the current make up, cabinet ministers should be
sitting members of parliament or senators, now is there not contamination
I think in this particular situation there is not much of a difference
because the Select Committee that has been set by parliament will
be directed not by parliament or by government as the Minister has
said, they will be directed by the political parties that constitute
those so clearly it is irrelevant that there's a government
Minister there, we have a Select Committee there. This whole business
of coming up with a new constitution under the Global Political
Agreement is a political process that's why I insist that
under this process, Zimbabweans are endorsing the principle that
Robert Mugabe and Morgan Tsvangirai will ultimately decide what
goes into that constitution and that is why we have said we reject
it in total and that is why we are not participating in that process.
This idea that the Select
Committee will be left independent and implementing the policy is
difficult to understand because the Minister will be giving it money,
he sets the policy but that policy which he sets - I'm sure
any policy by a Minister is set in cabinet, that cabinet is led
by the various so-called heads of cabinet there - the Principals,
and the Principals are directed by their political parties.
Just before I was coming
to your interview, I was listening to the news and we were told
here that the Zanu-PF politburo is meeting every week these days
- and one of the items on the agenda every week is a report on what
is going on in the constitution making process. The same applies
to I'm sure the party that Minister Matinenga is in the MDC-T.
So everything will boil down to the political behaviour. If the
Gono issue becomes problematic we shall see that it will affect
the constitution making process. If there's a bad relationship
over the appointment of provincial governors and so on, it will
affect. This whole business will end up as a political party process.
Before we go I wanted to find out your thoughts on reports that
I saw this week about devolution. Now the MDC Minister Samuel Sipepa
Nkomo announced an MDC proposal saying it could see the country
being divided into five regions each with a budget and a local parliament
of its own. Now Minister Matinenga can you confirm if it is an MDC
Violet what I can only say is that our manifesto in the last election
clearly recognised the need for devolution of power. I'm not
aware of the detail which you refer to but it has always been a
position of the MDC that power has unfortunately been concentrated
in one person and we need to make people feel that they are part
of Zimbabwe and that they are exercising some power but unfortunately
at present I am unable to give you the actual detail as to how that
devolution is going to be coming about. But it is also an issue
which is very much alive in the constitution making process and
I'm sure that this issue will thoroughly be debated, canvassed
and addressed in our new constitution.
Dr Madhuku, what are your thoughts on that - on devolution of power?
Yes I think I should say first and foremost that the issue of devolution
is an issue that Zimbabweans would want addressed in the new constitution.
If Minister Sipepa Nkomo raised those points he was actually raising
from the NCA draft of 2001. If you read the NCA draft it is very
clear on that and in fact currently it is the best document on devolution
that you can come across. The NCA draft came out from the input
of the people so I've no doubt that if there's a genuine
constitution making process in this country devolution would end
up in the constitution in the manner close to what the MDC-T say
- if that it is an MDC position. The MDC clearly as the Minister
said in his manifesto talks about devolution and we know that many
of our people in the country would want devolution. But devolution
will only come in a genuine constitution making process. The unfortunate
thing about the MDC-T's position is that they will not get
devolution from this process that they have embarked on, and so
they don't know what they want . . .
. . . if they want devolution they must get a people driven process
which is will be genuine. The one that they have put, Mugabe is
going to negotiate with them and at the end, there'll be no
devolution in that constitution.
Minister Matinenga I can hear you laughing in the background, would
you like to respond?
(laughing) What is the laughter about?
(laughing) I don't know, but that's why I'm asking.
(laughing) . . . I don't know. Dr Madhuku has got this ability
of gazing into crystal balls. I've already said that devolution
is an issue which is dear to the MDC's philosophy and it's
going to be addressed. So how he can say 'well you know it's
going to be different or whatever', I don't know what
he's talking about honestly.
Dr Madhuku, do you want to clarify?
you want me to laugh again?
It's not a matter of clarification, I know that good things
in a constitution like devolution only come out of a good process.
The current process is not is a good one. So I don't have
to wait for the last Stakeholders or the draft to know that under
the current process, Zanu-PF will not accept devolution, they will
shoot it down, the MDC will be forced to accept it if they go with
that process. So that's what I'm simply saying. I would
have wanted a situation where we can have an open process and then
those good things like devolution come in.
But anyway I think that
if we don't get devolution in the constitution that Minister
Matinenga is presiding over, then obviously, Sam Sipepa Nkomo and
all those people who have put across that proposal will campaign
for a No vote because I don't see why they would accept a
constitution without devolution.
Before I go to Minister Matinenga, Dr Madhuku, since you said this
was something that was discussed in the NCA constitution how would
you respond to people who say that this issue of devolution has
the potential to actually kill a perfectly sound constitutional
draft if the rest of the country turns to their tribal affiliations?
No there's no such thing as tribal affiliations. Zimbabweans
are very mature if they are given free space. You only get tribal
affiliations or those sentiments coming out of an oppressed framework.
If we get a free discussion in the country which is what happened
with those meetings that produced the NCA draft that Minister Sipepa
Nkomo is quoting from. I think Zimbabweans across the various ethnic
divides here appreciate devolution. Devolution is not for Matabeleland;
it's devolution for the rest of the country so it is wrong
for those, of course in this case Sipepa Nkomo announcing it might
have served the impression that it's a Matabeleland thing.
It's not a Matabeleland thing. Devolution is, as the Minister
there said earlier on, is an aspect of what we would want to see
our country develop into and this is why it is in the MDC manifesto,
it's a progressive thing.
Advocate Matinenga, can you just briefly outline or tell us the
timeline for a new constitution and also if you can explain reports
saying that the time limit was dropped from Amendment
19 by Justice Patrick Chinamasa, what is that about?
Let me just give you the timeline first. I indicated that the first
step was the establishment of the constitution of the Select Committee
which was done on 12 April. In terms of the GPA we must then hold
the First All Stakeholders Conference within three months of 12th
April which takes us to about 12/13 July. After that we have four
months of formal consultations which will take us to about mid-November.
Then after that we have the time to do the real writing of the constitution,
another three months which takes us to mid-February 2010. Then thereafter
we go to a second All Stakeholders Conference which looks at the
draft against what the people have said. Thereafter we take that
draft to parliament and we go to a referendum. That is roughly the
Yes, Article 6 is not
part of Amendment Number 19. Amendment Number 19 only incorporated
that part of the Agreement, which is Article 20. Article 20 being
the form of government which sets out the powers of the President,
cabinet, Prime Minister and so forth. Let me say this, at the time
the Bill was brought through parliament, people were so excited
and I was one of them that I did not even realise that the Minister
who was directing the Bill through parliament had clearly said that
the other portions of the Agreement really are of no constitutional
value and that it was only Article 20 which was of a constitutional
value and that the other Articles were simply being attached to
the Bill for information purposes.
So there was no deliberate
attitude on the part of Patrick Chinamasa to drop those issues or
it was not something done in bad faith, because I've gone
back to the Hansard report and I'm satisfied that he clearly
explained why every Article was not being made part of the Act.
One may also actually say that the fact that, particularly Article
6 was not made constitutional may be advantageous in one way or
the other because there has been some unease about the time available
for this process. A lot of people have expressed the view that maybe
it is too short and if it is genuinely too short, if there is a
genuine desire, genuine reason to extend it, it will be easier to
extend an Agreement rather than to amend the constitution. I'm
simply saying this in order to anticipate what may happen. I'm
not anticipating an extension but I'm simply saying if it
does come about it is maybe going to be better than in terms of
Agreement than in terms of amending the constitution. But I hope
But was it up to the Justice Minister to just make that decision
without consulting the other parties?
Silence . . . .
(thinking Madhuku had been disconnected) He is lost again and this
time I am not coming back.
I am still here (laughing) . . .
(laughing) You know we have to retrieve him every time . . .
(laughing) . . . he is still here
(laughing) . . . he didn't want to answer that question.
He is avoiding that question . . .
ALL laugh . . .
Are you avoiding the question Minister? Are you able to answer that
Was that question directed to me or Dr Madhuku?
It was directed to you about the Justice Minister just making that
decision. I know you said it wasn't a deliberate thing that
he did but surely since you are working as partners shouldn't
he have at least consulted with you before he had done that?
But some consultation maybe superfluous Violet and if it doesn't
really touch upon the essence on what we are wanting to achieve
it becomes meaningless.
Well I think that on that point, of course I think the Minister
is making clear what happened, I don't think they'd
really thought about it - the whole point of whether Article 6 becomes
part of the constitution or not. But he is correct in saying that
in it not being be part of the constitution there's an advantage,
which advantage we haven't realised it because we wanted to
use it to have portions of it changed - by getting an independent
chair or whatever, which we haven't.
So it will be very problematic
for the government then to at a convenient time to start changing
the Article when they were not changing it earlier on when they
were saying well we don't want to change what was agreed.
But I can see from what
he is saying, there are possibilities of extending this constitution
making process, to a period that might not be acceptable - because
there's also discussions Violet about this government wanting
to remain in power for the next four years or so. I think they don't
want elections until 2013. So they are likely to use the constitution
making process to claim that they are still writing a new constitution
therefore they will go on. This is why they want to control the
I actually wanted to ask you that question but I just didn't
have time but since you brought it up, the MDC has always referred
this arrangement as a transition but you said in your statement,
I think in an interview that I did with you before - that there
are many in the inclusive government who want to have this arrangement
last for a five year period. Now who precisely is thinking this
will be a five year arrangement Dr Madhuku?
Well I think that currently the President - who is the only person
there who has a clear term of office in that government - is the
one who took oath on 29th June and he is supposed to go for five
years from 29th June. The rest of those other people are the parliamentarians
who also have a five year term that they took - but their five year
term goes hand-in-hand with the presidential term. So legally they
are entitled to go for the next five years from 29th June, both
parliament and the government. But then they said in their discussions
- which they didn't put anywhere - there's nothing in
the Global Political Agreement to say that arrangement will be transitional,
they said they will review it after the constitution making process,
at least that's what they said. Now what it means is that
they may as well choose to go beyond the two years that they have
announced because they are not bound to it and our suspicion is
that they will go on and on.
I also know from information
that we gathered going around and so on that I think they will want
to go beyond the two years that we initially heard. So we are most
likely not to have any elections until 2013 and what they are going
to use is the constitution making process. There is no timeline
as to when the President will send that draft to a referendum and
if the draft is also accepted at the referendum, there's also
no indication as to when it gets into force. So you can get a constitution
made and accepted by the people and then taken to parliament but
then they say well it will get into force in 2013. So there are
so many parameters that might arise.
Is this correct Mr Matinenga?
No, but he's certainly correct that the GPA does not give
a life span to this transitional government. But again Dr Madhuku
properly said that the MDC has always described this period as a
transitional period and the MDC wants to effectively govern this
country and effective governance is only going to be brought about
by elections which are properly managed as a result of a new constitution
and that is not in five years time I can assure you that.
And a final word Dr Madhuku.
I just need to say to all Zimbabweans who are listening, that the
only reason why the NCA is not participating in this process that
the minister is describing is because the NCA believes that, that
process is not people driven and that the best thing for our country
is to get a people driven process .So the NCA is just not rejecting
this process just out of sheer interest in rejecting things that
are coming the government.
And Minister Matinenga, a final word.
Violet, the door is still open for the NCA to come and participate
in this process. Please don't let's just speculate because
we can only determine as to whether this process is people driven
or not, having regard to what is going to be done. I think Dr Madhuku
really got to the point but let's see what happens at the
First All Stakeholders Conference. It is only at that point that
we will be able to see, maybe some clarity, as to where we are heading.
But I can tell you this; we are heading for a process which is home
grown, of the people of Zimbabwe, inclusive and transparent. Thank
Advocate Eric Matinenga who is the Minister of Constitutional and
Parliamentary Affairs and Dr Lovemore Madhuku the chairperson of
the National Constitution Assembly, thank you very much for participating
on the programme Hot Seat.
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