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Another battle looms over Zimbabwe Constitution
Institute for Security Studies
August 14, 2012

http://www.issafrica.org/iss_today.php?ID=1532

Following ZANU-PF's marathon politburo meeting on Wednesday 8 August to audit the draft constitution, the party has maintained that it cannot accept the document without the revision of several clauses in order to include people's views gathered during the outreach phase of the constitution-making process. ZANU-PF spokesperson Rugare Gumbo announced last week that the 'party is expecting the amendments to be factored in by Wednesday next week [15 August], when the politburo meets to finalize its position on the draft constitution'. In what was seen as a major breakthrough in July, the Constitution Select Committee of Parliament (COPAC) comprising the three coalition ruling parties in Zimbabwe had finally agreed on a draft constitution after nearly four years of acrimonious debate. Following the disputed 2008 elections, ZANU-PF and the two MDC formations had to enter the Global Political Agreement (GPA) mediated by the Southern African Development Community (SADC) to avoid plunging the country deeper into conflict over the electoral results. The adoption of a new constitution before conducting elections again is a key requirement of the power-sharing agreement.

There remains concern that the constant need to bargain and compromise in order to accommodate numerous divergent political party interests may have resulted in a draft constitution that does not mirror popular views. The proposed constitution provides for an overhaul of executive authority and the devolution of power. Although an executive president will still rule the country, he/she will be constrained by checks and balances. Any decisions made in relation to key issues such as the declaration of war, state of public emergency and senior public appointments within state institutions will not be taken unilaterally by the president but in consultation with parliament. The president and parliament will have fixed terms, with elections every five years. The draft also limits the terms of senior public officials and the chiefs of the security services. It clarifies the terms of succession in case of the sudden death, resignation or incapacitation of the president by providing for the vice president to assume the office of the president for the remainder of the term. This raises the electoral stakes of selecting a vice-presidential running mate perceived to be capable of assuming office upon the incumbent's departure. Set against the backdrop of the security sector's partisan involvement in political processes in order to influence the outcome of elections, the draft constitution requires the security services to discharge their duties on neutral and non-partisan grounds. An Act of Parliament should provide for an effective and independent mechanism for receiving, investigating and remedying complaints from members of the public about misconduct by Zimbabwean security personnel.

One of the significant proposed changes is the devolution of governmental powers and responsibilities to provincial and metropolitan councils and local authorities in order to improve government efficiency and effectiveness while enhancing people's participation in governance. An Act of Parliament will provide for the demarcation of the boundaries of the country's ten provinces. Provincial governors will chair the provincial councils, which will also include parliamentarians whose constituencies fall within the provinces concerned, chiefs, ten persons elected by a system of proportional representation and extra staff. However, the new arrangement does not entail a fully-fledged federal system.

The draft constitution provides the Zimbabwe Electoral Commission with a broader role in which the commission supervises the entire election process and environment in which elections takes place. There will be equal representation of women in all elected institutions and commissions. The draft charter provides for an Independent National Prosecuting Authority, while the attorney general currently handles both legal advice to the government and prosecutes on behalf of the state. The document does not provide for compensation for land compulsorily acquired for resettlement under the agrarian reforms of 2000, except for improvements effected on it before its acquisition.

Some of these provisions risk being undercut by the resistance from ZANU-PF. According to media reports the party stated its objections to certain clauses, including those that temper the imperial presidency, such as parliament and not the presidency approving the deployment of troops both inside and outside the country; the party with the majority of parliamentary seats in a province appointing provincial governors, previously the prerogative of the presidency; and the dilution of the authority of traditional leaders, who have been strong supporters of ZANU-PF. This can be viewed as ZANU-PF seeing some of the provisions as an assault on President Robert Mugabe's current authority rather than safeguarding the threats to long-term democratic consolidation posed by the continued imperial presidency.

Both MDC formations have endorsed the draft constitution and say they will not countenance its renegotiation. They argue that COPAC, which included ZANU-PF members, has already endorsed the document, which has been referred to by MDC-N leader Welshman Ncube as a negotiated 'compromise' that was crafted under the 'give-and-take' framework of the GPA. The compromise nature of the draft constitution has, however, meant that the three political parties have attempted to get as much as possible from the other parties, hence ZANU-PF's scrutiny of the document and calls for amendments. Indeed, according to The Herald newspaper Gumbo said that ZANU-PF members ' . . . overlooked some of the critical issues, which Politburo felt needed to be re-emphasised to reflect the views of the people'. ZANU-PF has previously threatened that President Mugabe can still call for elections due by June next year under the current constitution that benefits his party if a constitutional deadlock persists.

It remains to be seen how SADC will react to the latest obstacle in the unpredictable path to Zimbabwe's new constitution. The regional body's extraordinary summit held in Luanda, Angola, in June 2012, had urged the Zimbabwean parties to the GPA 'to finalise the constitution-making process and subject it to a referendum thereafter . . . assisted by the Facilitator [South African President Jacob Zuma], to develop an implementation mechanism and to set out time frames for the full implementation of the Roadmap to Elections'. Tellingly, soon after the Luanda Summit the three parties delayed President Zuma's planned visit to Harare to help them to resolve sticking points in order to fully implement the GPA, including finalising the constitution-making process, stating that they felt it would only be sensible to invite President Zuma after the completion of the constitution drafting process. The annual SADC Summit scheduled for 17 and 18 August in Maputo will most likely be held without the parties having agreed on the draft constitution. Notwithstanding the grandstanding by the two MDCs and ZANU-PF's dissension, it is critical that SADC sticks to its guns that the parties agree on a draft constitution, which is a key GPA deliverable.

If the three parties agree on the draft constitution a second all-stakeholders conference needs to be held before the draft is tabled in parliament for debate and validation. It will then be voted on by referendum. Perhaps the parties, instead of their continued haggling, should submit the draft through these processes to allow Zimbabweans to decide whether the draft reflects their views.

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