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  • New Constitution-making process - Index of articles


  • How the Constitution strings were finally tied together
    Crisis in Zimbabwe Coalition
    January 18, 2013

    Crisis in Zimbabwe Coalition met COPAC co-chairperson, Hon. Douglas Mwonzora, who revealed the full details of the agreement reached to finalize the COPAC draft Constitution at the Crisis Zimbabwe Offices on Friday, January 18, 2013.

    The meeting was attended by the Crisis Coalition Director McDonald Lewanika and Programs Manager Nixon Nyikadzino. Hon Mwonzora apprised the Coalition's Office on the agreement reached on the seven key deadlock issues. The agreements are contained in a signed Drafting Instruction which has been given to the drafter who, the Co-Chair said, are now in the process of finalizing the draft constitution to be out in a week, and latest by end of January 2013, ready for presentation to Parliament in February, with possibilities of a Referendum on the draft Constitution in April.

    After the meeting, the interim assessment of the Coalition is that there seems to have been no earth shuttering changes to the July 18 draft, and the most accommodations made, were unfortunately accommodations meant to allay political party fears rather address the people's wishes. The process, only has meaningful credence in as far as it allowed the out puts of some fairly democratic discussions at the 2nd All Stakeholders Conference to be discussed and incorporated into the final draft, albeit with politicians and political party leaders as the final arbiters on the matters.

    The COPAC co-chair shared the following as the final agreement on the deadlock issues (paraphrased), with the Coalition's interim comments where it was felt necessary. Extensive comments will be sought from the Coalition's members and experts and released in due course.

    1. Devolution

    All Clauses on devolution will be as in the COPAC draft constitution released on July 18, 2012 with the changes being the following: A preamble to explain what devolution does not incorporate or imply. The office of Governor has been done away with to be replaced by a Chairperson of Provincial Council, who will be elected by the full council from the list provided by party with the majority in the council.

    Comments

    The provisions on devolution while short of what have been ideal, are welcome as a good platform to build on for the future. They are better than other abstract concepts, which had been placed on the table like Delegations and Decentralization. The absence of direct democracy on most of how this devolved state is going to be put up, and the absence of a Provincial Government still means that there are gaps, that were created as a result of the compromises, but gaps, which may be lived with.

    2. National Prosecuting Authority

    There will be an Attorney General and a National Prosecuting Authority as in the COPAC draft. The change is that the transitional provision will work for six years instead of the previously seven years.

    Comments

    The separation of these two functions is a welcomed development. The only rub here, has to do not with the provision but with personalities involved in the offices during the transitional period. The assumption, one would guess is that the current Attorney General will take up one of the offices, possibly the NPA leadership for the transitional period. Given reservations around the partiality of the current office bearer this leaves a foul taste in the mouth. However, the provision introduces a limit to the term of the office bearer, which was not the case before.

    3. National Peace and Reconciliation Commission

    There will be a constitutional body for 10 years after which an Act of Parliament may decide to perpetuate it. The difference is that the provision in the draft Constitution of 18 July 2012 used the word "shall" instead of "may" and the period for the existence of the constitutional body had been shorter.

    4. Executive Authority

    Executive authority will be vested in the President and h/she will exercise it through Cabinet. The COPAC draft said the executive authority will be vested in both President and Cabinet.

    5. Land Commission

    In spite of the safeguards put in place, the commission would still have been better off as an independent Constitutional Commission. The compromise made is reflective not of best practice but the fears of some parties of the state at the moment.

    6. Running mate

    The running mate provision will remain the same, but will be coupled with a transitional provision that ensures that it will not be immediately implemented, but will come into effect after five years.

    Comments

    The transitional provisions are a "get of jail free card" for the current political leaders, who will not have to deal with the messy issues of succession in their parties at this stage in full view of the country's citizens.

    7. Constitutional Court

    The constitutional court will remain part of the constitution and there will be a transitional provision to have the Chief Justice, four Supreme Court and three new judges sitting on the court for seven years.

    Comments

    Th transitional arrangements here are also reflective of fears rather than best practice. The inclusion of this court in the constitution would have also offered an opportunity for a fresh start with independent judges. Part of the challenge of this provision will be the absence of a meaningful vetting exercise that is backward looking to ensure that Judges to this court have not been complicit in bastardising the constitution or engage in some dishonorable conduct while on the bench in the previous dispensation. The absence of this vetting process will mean that it is possible for bad apples from the past to be transported into the new dispensation. There is also the challenge of 'double dipping' by some judges who will be on both the Supreme Court and Constitutional court benches.

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