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Minister of Constitutional Affairs, Advocate Eric T Matinenga, answers your questions about the Constitution making process in Zimbabwe - Week 2
Kubatana.net
May 2010

View the listing of all questions and answers here

View week two questions and answers in Shona here

View week two questions and answers in Ndebele here

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1. How will the issue of land tenure in Zimbabwe be addressed in the new Constitution?

Now this is a question that is seeking my view on certain Constitutional issues. Now I am not going to determine what is in the Constitution - the people out there will. But I am also a Zimbabwean, and therefore also have my opinion about what I would like to see in the Constitution. This is what I will share with you - but know that it is the people who will determine what is in the Constitution, not my personal views.

Now there is no uniformity in land tenure in Zimbabwe, but one can identify three systems of land tenure. The first one is the land tenure which derives out of the compulsory acquisition of land for agriculture and resettlement. That land tenure is based on what is known as an offer letter. That offer letter says that that piece of land can be withdrawn from me at any given time, because that land belongs to the state. The state has got title deed for that piece of land. So immediately what comes out of this arrangement is that the holder of an offer letter does not have complete security of tenure.

You then come to the second type of tenure - that which is enjoyed by the majority of us who have no access to this land really, who only have tenure in respect to communal pieces of land which we hold. Again, there is no security of tenure, because that land is held by the various local authorities who hold that land in trust for us, the communal land holders who can till the land.

The third one is that tenure which is enjoyed by the person who has title deeds to that piece of land. That person, in theory, can do whatever they like with that land. But in regards to our compulsory acquisition of land, it means that even if you have title deeds to that piece of land, government can acquire it, and your tenure on that piece of land is at risk.

So when one looks at all of these three, what is important is that we must address the issue of tenure. We must bring about security of tenure, so that agricultural land can become an economic entity that we can get an economic benefit out of. This can only be done if the person who occupies that land has security to work that land. This isn't so much about the ownership of the land, but the use of it so that it brings about an economic benefit.

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2. How can we ensure that COPAC remains non-partisan?

COPAC is that group of Parliamentarians who are spearheading the writing of the Constitution. It is a group of 25 Members of Parliament who form the Parliamentary Select Committee. The composition of COPAC is that the three main political parties, and one chief, are represented. There are 11 members from MDC-T, 10 from Zanu PF, 3 from MDC-M and one chief.

So by its very nature, one hopes that this grouping will form checks and balances so that no one group can impose itself on the other, and so that it does things which are beneficial not only to these groups but to the people of Zimbabwe.

In addition to COPAC, we also have two other committees which contribute to the Constitution making process - the Steering Committee and the Management Committee. This means that COPAC is balancing different parties within its members, and also that it is checked and balanced by these two other Committees. This helps to make sure that COPAC remains non partisan.

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3. Today's question came from several different callers, including ones in Mutare and Chipinge. They asked: How will you protect ordinary Zimbabweans to help them feel free to express the views of what they want in the new Constitution? Many of us are already experiencing intimidation.

This is a burning question not only for Chipinge and Mutare, but for people all over the country. People are still not satisfied that they are not going to experience the same violence and intimidation that happened in the run up to the June 2008 elections.

I really wish I could be more positive in assuring people about their safety. But for each outreach meeting we have, we will make sure that at least 5 police officers are present at each outreach meeting. But you could ask me - what about what is happening now before the meetings, and what about what will happen after the meetings, how will you protect people then. This is where I say in all humility that I wish that I would be able to provide more. But the reality is that I cannot provide any more.

What I hope is that all the political parties - particularly those who have an unfortunate culture of violence - will be able to rein in their supporters, and make it very clear to them that they will not support those who engage in violence. I think we need to make the point very clear - there is no need to die for a politician. It is not worth dying for, or becoming violent yourself, just because a politician has said to. Because as soon as the politician has gotten what he wants in that context, he will move on and forget about you.

In addition, I sincerely hope that the police will get out of this belief that there are certain parties which can do anything without the police stopping them. The police should apply the law without fear or favour. I also hope that the Organ on National Healing will help to heal communities so that the outreach programme is conducted in peace.

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4. Today's question has come from a number of people, including Wellington and Kudzanayi. They asked: What will the new Constitution say about the executive branch - such as the age of the President, tenure and terms of office, and whether there is both a President and a Prime Minister?

Now this is a question that is seeking my view on certain Constitutional issues. Now I am not going to determine what is in the Constitution - the people out there will. But I am also a Zimbabwean, and therefore also have my opinion about what I would like to see in the Constitution. This is what I will share with you - but know that it is the people who will determine what is in the Constitution, not my personal views.

The current Constitution has an Executive President with executive powers, which are considered by many as centralizing too much power in one person. With the signing of the GPA, the Constitution was amended, and introduced a Prime Minister for the duration of the transitional government. Unfortunately, this GPA does not clearly define the powers of the President and the Prime Minister. But in the new Constitution, if you were going to have both a President and a Prime Minister, that Constitution must clearly describe the powers of the President and the Prime Minister, so that there is no this confusion.

My view is that, for a country like Zimbabwe, with the limited resources that we have, we cannot afford to have both a President and a Prime Minister. I would settle for an Executive President. But, in the event that the people out there want both, I think that what is important is that the powers must be clearly defined. Let's know who does what. Let's know where the power starts, and where the power stops, for both the President and the Prime Minister.

Whatever the position is, I think it is important that there are term limits for the President, Prime Minister, or both. It is also important that our Constitution does not centralize power in one person. We must have effective checks and balances to prevent this. So it is important for people to reflect on this and articulate their views. In recent years, we have had a progression to the centralization of power. But in my view, we need rather a progression to the decentralization of power - like the devolution of power question which I addressed previously.

In terms of the age of the President or Prime Minister, I do not have any considered views on the matter. People say that if you're forced to resign at a particular age, it is a recognition that you are now unable to give your best in the circumstances. So given that argument, maybe you need to put a cap on the age. But there are other people who have been President or Prime Minister beyond the age one would normally retire - and they have done well. What is important is that whoever is there should not be there for life.

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5. Today's question comes from Mashasha, who asked - What law can we put in the new Constitution that will hold members of Parliament accountable to their constituents? Can we have a recall vote when our MPs are not performing?

This question again seeks my views about what I would like to see in the Constitution. There are two issues here. There is what is clearly identifiable as political recall, and then there is some other difficult concept which seeks to recall a Parliamentarian because he is not performing.

In respect of the first issue, political recall, in terms of our Constitution as we have it now, there is a provision which allows the leader of a political party to approach the Speaker of Parliament and say to him "We had Mr X who was appointed on our ticket, but who no longer shares the same principles as ourselves. Thus, Mr X can no longer be a Parliamentarian with us."- and then you go back to the people.

The unfortunate thing about this is that it imposes the power of recall on the leader of a political party - and not on the people. What I would want to see in a Constitution is where the power to recall does not rest in the leader of a political party, but in the electorate instead. That power I think can be included in a Constitution by demanding that if a Member of Parliament crosses the floor, we must go back to the electorate in that constituency which put him in power.

In Tsholotsho, we had an independent Member of Parliament, Professor Jonathan Moyo, who, without any consultation of his constituency, joined Zanu PF. I have no problem with him doing this, but I think in all fairness if you do that then you have to go back to your constituency and let the electorate say whether they are happy with your changed position. They would have voted you into power because you espoused certain policies. When you change, then that change must be endorsed by the people.

The other recall is when you say a Member of Parliament is incompetent. It is good to talk about this. But I think it would be very difficult to introduce an acceptable objective standard as to how incompetent a member would be before his recall. For example, do you think a member is incompetent because he has been unable to buy books for the schools in his constituency? Because he hasn't provided medical supplies for his constituency? One has to look at a host of factors to determine whether that particular person needs to be recalled. I see a difficulty in recalling a Member of Parliament in these circumstances, because it would be difficult to have an objective standard as to how a Member of Parliament is to perform.

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