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Hot Seat: Heated panel discussion on Zim draft constitution
SW Radio Africa
February 28, 2013

http://www.swradioafrica.com/2013/02/28/hot-seat-heated-panel-discussion-on-zim-draft-constitution/

Violet Gonda’s guests on the Hot Seat programme are Zanu PF’s COPAC co-chairman Munyaradzi Paul Mangwana, political commentator Professor Brian Raftopoulos and the General Secretary of the ZCTU Concerned Affiliates, Raymond Majongwe. They discuss why they will vote YES or NO at the constitutional referendum next month. Political parties were fighting over every clause in the draft constitution but suddenly everything changed and they started agreeing. What changed? Did President Mugabe really say his ZANU PF party might change the constitution if he wins the election?

GONDA: Let me start with Mr Mangwana – you are encouraging Zimbabweans to go and vote on March 16th to vote for this new draft constitution – why do you think this is a better constitution?

MANGWANA: I think this is a very good document; it has an extensive and comprehensive Bill of Rights - covering political, economic, social and cultural rights. It deals in finality the issue of the land; it provides a government, which has checks and balances, clear separation of powers between the executive, the legislation and judiciary. And it deals with issues of transitional institutions; it provides for devolution of power and also creates a democratic system where everyone can participate. It also provides for local communities to enjoy the fruits of whatever natural resources are in their areas, which is a new feature in this particular constitution. I consider it is a serious improvement; there are a lot of matters dealing with gender balance, with creating special seats for women. We are also introducing a senate which is almost 50/50 in terms of males and females representation in there. So I think it’s a very good document.

GONDA: Mr. Majongwe, it sounds like the perfect document – why are you saying you will vote NO and what critical areas are you concerned with as a labour movement?

MAJONGWE: Yah I think Mr Mangwana is really speaking from his Zanu PF position. What he is basically telling the nation is that that is a Zanu PF document. For some of us who are in labour it is going to be very difficult for us to be convinced that this document is a people’s document because it is not. It was not written by the people, it is a document that is coming from the top down to us. It is being forced onto us. It is unfortunate that the MDC-T and the MDC led by Mutambara and Ncube have also decided to connive to cheat the people of Zimbabwe into making us believe that this document is what we were waiting for. This document is a fraudulent document. It is being thrown to people but I think some Zimbabweans will stand up and say we are going to vote NO because it does not carry the proper message and it is not properly packaged.

GONDA: But Mr Majongwe besides your general concerns that it’s not people driven, what about the actual contents of the document? Do you have any specific issues that you are concerned with?

MAJONGWE: Surely yes. I will start by saying workers don’t have the right to strike in that document because what they give to us with the right hand, they take with the left. They are basically trying to lie to us that we have a right to strike, they turn around and say to us, they are going to label some of those things that we want as ‘essential services’ and who is going to be sitting to say this is essential service - point one. Point number two – collective bargaining is basically mentioned in the document in Section 55 but if you go to Section 203, it’s not there because the fixing of salaries is then deposited in the hands of the President, the minister who will then determine this. So where is the collective bargaining if the fixing of salaries is then going to be left to the President?

The other point that also bothers us as workers is you are going to be told that as a civil servant you cannot be office bearers of any political party, which we find quite shocking in that at the end of the day many of the people who are currently in cabinet or in government are former civil servants but they are turning around to say anybody who is a civil servant cannot stand up and be taken as an office holder in a political party. So as far as we are concerned we are simply going to vote NO. For instance there is no right for jobs or economic empowerment, there’s no right to education, grant loans, the youth quota, and all these things are not there. For instance the issue of the living wage, it’s definitely not there.

GONDA: Professor Raftopoulos, I understand that you will vote YES – can you tell us why and also you were in the National Constitutional Assembly when it voted NO in 2000 so what has changed?

RAFTOPOULOS: Well I think the first thing to point out is that this constitution was a central part of the mediation process. It was always therefore going to be a compromise document and part of a broader process of trying to establish the conditions for free and fair elections - which was the original objective of the SADC mediation. There’s clearly things in the constitution which are problematic; there’s also things which I think establish a very good basis for moving forward and I think that as part of a long term process of discussion between the parties which was established through the mediation, it’s a step forward and one should look at it as that.

In terms of the differences, I think the 1990s, the conditions were very different; of course we were fighting for issues of process but it was also the time as I said when we were also looking towards challenging, in a sense, state power, looking to look for bringing in to being a new political dispensation and therefore the challenges, the issues were different. The state of the civic movement, the emerging political party was different. At the current moment we have three political parties which have been involved in mediation after a long protracted process which has been guaranteed by SADC and the AU and has produced a document which I think provides some step forward in moving us out of the current impasse. I don’t think this will be the last word on the constitution but I do think that it helps to move us forward.

GONDA: Which areas would you say are problematic?

RAFTOPOULOS: Well I think for example devolution, clearly there’s a really watered down section on devolution and I think many, many people especially in certain parts of the country would have expected a stronger position around devolution. There’s also the old issue of concentration of power in the presidency which continues to be a problem but as I said also there’s issues of checks and balances, new commissions, new areas of change within the judiciary particularly the Prosecuting Authority, a strong Bill of Rights so there are areas where some things can move forward and there’s no way that any one party was going to get everything it wanted out of this transitional discussion, out of this discussion which came out of a compromise and I think one has to look at it through that lens and find ways to move forward out of this process.

GONDA: What about the people? What do they get from this especially when the president said a few weeks ago that this was a document that was crafted by the political parties which some have said is in violation of the GPA?

RAFTOPOULOS: I think what the GPA stated was this would be a parliamentary process, parliamentary-led process and that there would be consultation. There was I suppose a certain level of consultation, not as much as many would have wanted and certainly issues that were brought up in the consultation may not have been placed in the context of the constitution. But again that was always going to be a negotiated thing; not everything that people said could be included; it was going to be a negotiated issue between the political parties – that was clear from the beginning. I think it would have been naïve to expect it would have been any other way given the political compromise that emerged after 2008.

GONDA: Mr. Mangwana – the National Constitutional Assembly says that with regards to executive powers this constitution gives too much power to the President. Is it better or worse than the current constitution?

MANGWANA: Ah well there’s a lot of consultation between the president and other arms of government but let me correct something first – the President is being misquoted for saying that the document is to be negotiated. We were negotiating conflicting positions coming from the people; we were not negotiating party positions. People were saying things which are contradictory therefore it was necessary for us to say which of the two should we put into the constitution and that process then required us to negotiate. We were simply not negotiating from the abstract - we were negotiating, basing our negotiations on the outcome of outreach, of what people had said. Right that aside, the current executive authority is shared between the President and his cabinet. There are things the President cannot do on his own which of necessity he has to work with his cabinet. He can also not make certain appointments without consulting the Standing Rules and Orders committee of Parliament - so there is that checks and balances existing in the current draft.

GONDA: Mr Majongwe, can you come in on the issue of the outreach programme because many of your colleagues in civil society have complained that many people were not consulted and the views of the people were not included in this draft constitution.

MAJONGWE: I think the most important thing here is Mr. Mangwana is being very conservative with the truth. He cannot tell us that the views that they were grappling with were the people’s views when they basically were asking their parties, their people to regurgitate their party position at all these outreach hearings. A lot of the positions that were then brought up for discussion were well choreographed, well discussed and agreed upon positions that people in the rural areas were told to come and produce as their own. So if these views are then carried from wherever that will not make these views the views of the people, they are still party positions. Both Zanu and MDC had their positions within their own membership and these were the positions that were brought to the table for discussion.

So as far as I am concerned and as far as the constituency that I represent is concerned, because we are the teachers we know exactly what was happening because these things were happening in and around schools. And we know that the people, who were coming, were coming to represent specific political presentations. As far as the issues that he’s raising, the President has all the authority – it’s not like there are going to be any checks and balances – the President has all the executive authority in terms of running this country.

So as far as we are concerned we don’t want to be lied that the President will share power, will be in consultation with cabinet – all those things don’t exist as far as this document. And we must also be able to stand up and say fine if this is what the people in Zanu PF and the MDC have connived to agree to want to pass through our throats, we are also going to stand up and say we don’t agree because we are citizens of this country.

I just want to add one exciting point that we also observed in this particular process – the issue of land. Land has almost been given back to the people who already have it. They are going to compensate the capitalist system, they are going to compensate the property of those guys who have always had this land and at the end of the day I would want the MDC people to be around and tell us where exactly are they going to come in with regard to the issue of land because as far as I am concerned Zanu PF got everything that they wanted in so far as protecting the land that they took from 2000.

GONDA: Mr. Mangwana can you comment, in particular on the issue of the land, and can you comment on compensation for farm workers?

MANGWANA: Ah what compensation for farm workers? When the land was taken away from the whites and given to the new black farmers and the same workers were taken over for employment by the new farmers so there’s no need for any compensation to talk about. But as far as land reform is concerned everyone was invited to participate in the land reform programme. Those who were then in the opposition thought that it was a political hoax and they didn’t participate. So it is their fault! This is a historical event, which has already taken place and it is irreversible! Whoever has got land has got land, who doesn’t have land has no land! But if there is any land, which is going to be given it will be given decently and every citizen will be allowed to participate. So I don’t know why Majongwe is complaining. If he wanted a piece of land he should have joined the queue!

MAJONGWE: That is where the tragedy is! That is where the tragedy is! Are we then going to say we are going to compensate the white farmers who left and the black people who were working and toiling for nothing are just going to be condemned and are going to be inherited from the white farmer to the black farmer who is not paying salaries? That is unfair! And as long as we are going to be arguing for black empowerment, these blacks - the workers - must be compensated just like you are going to compensate the whites for owning the land that was not theirs!

GONDA: Professor Raftopoulos can you come in and also your reaction to the issue of property rights because the constitution allows anyone to take land and any business, if I’ve read it correctly? What can you say about this?

RAFTOPOULOS: Yah I think what the constitution does is consolidate what Zanu PF has done in terms of the land. I think you won’t get all the reconciliation on the land question through the constitution. This land process has produced many contradictory results. As recent research shows, it hasn’t been the complete failure people thought it was but at the same time it hasn’t ended the land question. It’s raised a whole series of new issues, which are going to confront Zimbabweans throughout - for the coming decades. So this issue hasn’t been resolved and there are harder questions ahead. Questions which should have been resolved through the land audit, which hasn’t happened. So I think there are still a lot of issues around the land which wouldn’t necessarily be dealt with simply through the constitution – issues which will have to be dealt with through legislation coming afterwards and through political and technical processes that need to take place in the aftermath of what has happened.

GONDA: This is the other question that I was going to ask you and since Mr. Mangwana is here we will also ask him if he can confirm because there are reports saying that President Mugabe has said the constitution will be changed if his party wins, and so Professor Raftopoulos I’m asking why should Zimbabweans always do things in half measures especially when there’s a strong chance that the constitution maybe be reformed after the general election?

RAPFTOPOULOS: Well… (interrupted)

MANGWANA: I think the question is being misunderstood. He was explaining a legal position that there is a clause, which allows the legislator to amend any clauses in the constitution if it has a two-thirds majority. That’s a legal position that the constitution is not cast in stone. If anyone is unhappy with any clauses, which are in there, they make the necessary lobbying; they can have those amended by any government which is elected after the elections. He is not saying as soon as Zanu PF wins they are going to amend the same draft. I did not hear him say that and I was at the meeting when he made that statement.

GONDA: Yes I was going to ask you if you could confirm that, but Professor Raftopoulos can you also give us your thoughts on this?

RAFTOPOULOS: Yes I think Mr Mangwana is right on that – it is a legal position. Either party who would win an election and have a majority could effectively make changes in the constitution with a sufficient majority. So I think that is a legal position and it’s clear that as we go forward there are certain issues that will be tackled again. Issues that parties might find that were unsatisfactorily dealt with in the compromise document that will arise again. This is a document that will continue to be contested because it was a highly political process – a political process which came out of a highly conflictual situation.

GONDA: Mr. Majongwe – the political parties were fighting over every clause in this draft but everything seemed to have changed suddenly and they started agreeing and it took Parliament a day to adopt the constitution and a date was immediately announced for the referendum. Are you surprised that this whole process is now being fast-tracked?

MAJONGWE: My conscience seems to be telling me that if all of a sudden a crocodile and a fisherman start agreeing that they’re going to be doing fishing together then there should be a very serious problem somewhere. I’m actually baffled that all of a sudden why were we fighting if these two parties have suddenly realized that they need one another? Why did we lose so many lives if suddenly Mugabe, Tsvangirai, Ncube and Mutambara can sit and shepherd this country out of the mud that they are claiming that they are doing? What has been the problem all along?

What makes us very suspicious is that when we look back we are quite worried that the interests of the people who are working - the farm workers we are talking about, the civil servants that we are talking about, the vendors – they have no stake in the whole process. Those people who committed the atrocities are scot-free; they will not be touched. The women who committed atrocities will not, the young activist who belong to several other processes are the ones who are going to be dealt with in this constitution.

We are very worried and very disturbed and I think it is out of years of experience that the MDC was completely whitewashed and hoodwinked into believing that the land issue has been solved when in actual effect Zanu PF has fortified and strengthened their position on the land issue and have taken it completely. Because on the issue of land – they’ve actually gone and refined it and said the minerals under the land or in the land will belong to those who own the land. This means as far as this situation is concerned, even if the MDC wins, they will not control the mines, they will not control the land because already those people who own the land have full rights over it. We are also sadly going to compensate the exploitative commercial farmers and we are concentrating and protecting foreign interests ahead of the people who have been toiling on this land and I’m actually very disappointed in the MDC!

GONDA: There are observers who say many in the civil society who have been traditional supporters of the MDC-T in particular, know there is a problem with this draft document but don’t actually have the guts to go against the MDC. Is this true?

MAJONGWE: I can’t speak for them but the most important thing is let the truth judge us, let time judge us and I think I would rather stand with very few people in one corner than go and join a bigger group because the majority does not mean right. Even if the MDC is going to win elections and condemn us and say to us you did not support our cause, you are not going to be part of our processes, so be it.

GONDA: Mr Mangwana why are you hurrying this draft or this process through? Even the Zimbabwe Electoral Commission, who will administer the referendum, wants at least 60 days.

MANGWANA: We are not hurrying anything, this process has taken more than four years and in any event we are not, as COPAC, we are not responsible for setting the dates of the referendum. We did our work as instructed by the Global Political Agreement - we reported to Parliament and tabled our report to Parliament. Then from then on the executive has taken over, they’ve set the date for the referendum and everything follows the executive orders.

GONDA: Well the NCA says 30 days is not enough and even the Zimbabwe Electoral Commission has said that it needs at least 60 days - so do you think it should be extended?

MANGWANA: That is the matter, which is before the High Court and I cannot comment on it. The High Court is still to express its view. I understand the NCA has lodged a legal suit in the High Court complaining about this time period and no-one is allowed in terms of the laws of this country, to comment on a matter which is pending before the courts.

GONDA: Professor Raftopoulos what can you say about that – the issue of extending the date at least to give people time and also are you surprised that the three rival parties have finally found each other to push for a YES vote when they have been fighting all along?

RAFTOPOULOS: Well first of all I think the extension – there is a legitimate case for an extension. I’m not sure why the President rushed it to declare the referendum on the 16th because it’s clear to me that more time would not have cost us much more and it would have been amenable to allowing people a greater space to discuss and to operate. Regarding the convergence of views – no I’m not surprised. I think that the parties have been, despite the conflictual positions, have been finding common spaces over the last four years and certainly have found a common space around the constitution despite the disparities. It is also clear that at least two of the principals in particular, or the three who are there if you regard Mutambara as a principal, have found common space even though they have kind of shut Ncube out of their deliberations. But it’s clear there has been some convergence. And that was clear after the Second All Stakeholders Conference where it seemed there would be an impasse because having gone through this long process one assumed all the parties had agreed and then we were told this matter would be taken to the principals, and very quickly after it had been taken to the principals, there was complete agreement. So one is not sure exactly what happened there but at this stage I think that you’re likely to get a YES vote because the political parties have agreed but also because as I have tried to argue, there are elements in this constitution and in the whole political process which do allow us to move forward. It would have been unrealistic to expect a constitution to resolve all the political issues that we’ve faced. It’s a document, a living document, which provides a framework but it’s not going to guarantee everything. That comes with the politics of constitutionalism and the opening up of democratic space which can only be fought for in the coming years.

GONDA: Mr Mangwana cynics say freedom of expression is enshrined in our constitution but people don’t have it in Zimbabwe - those in Zanu PF will always do whatever they want with or without this new constitution.

MANGWANA: I think we will always have people who will always see evil, think evil, sleep evil and eat evil. We are moving into a higher mode of democratization, there’s a constitutional court now. Anyone whose rights have been breached can take the government to the constitutional court. It is also not true that we don’t enjoy freedom of expression. What we are doing right now is a clear testimony that there’s freedom of expression.

GONDA: You said that it’s not true there’s no freedom of expression in Zimbabwe but one good example is with the WOZA women who were arrested for demonstrating last week. What is that about?

MANGWANA: No, no, no – if you infringe the laws of the country, you cannot hide under freedom of expression. You see you are allowed to demonstrate but you must make an application, inform the police. If you don’t follow the laid down procedures, you’ll be arrested. You can’t just demonstrate willy-nilly everywhere. If you think that POSA is unconstitutional, you take it to the concessional court and have it nullified. If you can’t, then it’s constitutional and as a citizen you must comply with its provisions.

GONDA: Mr Majongwe as a civic leader, what’s your reaction to what Mr Mangwana is saying?

MAJONGWE: I think that is the sickness that this country has. Let me start by responding to the issue of the time that has been given. I think that is part of the corruption that somebody wants to steal and steamroll this document at supersonic speed. You can’t tell me that you give people such short notice and then tell us that they’re only going to do 70 000 copies of the draft constitution. 70 000 copies will mean one document for every 214 people and expecting the 214 people to be reading the document in 16 days – it’s unbelievable.

I think it is an insult to our conscience that the people, who are both liberators in view of Zanu PF, and democrats in the name of the MDC, want to do this to us. It is unbelievable but possibly because we are living in this era of unbelievable things happening - possibly it would happen.

I think the most important thing that we want Mangwana and Douglas Mwonzora to know is that the citizens of this country we must not be made to believe that what the politicians say is right. We must have the express right to demonstrate, to stand up and challenge these comrades as and when we want. It must not be left to the political parties to dictate and determine how this country is going to be run and I think that is where the real problem is.

GONDA: Some people say the future is not now but later and that although the document is not perfect it is a document that we can work with right now. You keep saying you will vote NO but what is the alternative?

MAJONGWE: The most important thing here is this – when we want to build a horse and we end up building a camel, and then we start saying to everybody because we have built an animal that has four legs, let’s jump on it and move forward. That’s not what we want. This decision should not be left to the political parties to ultimately then package all of us, some of us who might not necessarily be belonging to these political parties. It must be done transparently. Give us enough time to read this document. Possibly when you give us time we then can go out and say yes we can vote YES. Not now. We have a membership of 14 000 people. We will not be able to give each one of them this document. What of those that are bigger – the churches? We want people to see this document, it’s not a document for making buns, and it’s not a recipe for baking meat or braaing meat. It’s a document, which is going to be used to govern this country. If it took these guys four years to come up with this haphazard document why do they want 25 days to dispose of it? Mangwana must come and tell me where collective bargaining is in this document! Why civil servants are being taken away from the rest of the workers of this country? Why are we being told that we must not join political parties? We are not Brigadier Nyikayaramba all of us - we are not soldiers. They must not write documents to deal with certain individuals and you put the rest of us in straitjackets.

GONDA: And a final word Mr Mangwana?

MANGWANA: I think I am inviting VaMajongwe for a one-to-one, I need to educate him on the contents of the constitution more and I’ll advise him that there’s a lot of collective bargaining provision; civil servants are allowed to collectively bargain but I see that he is leaving a window for us to meet each other somewhere - so I’m inviting him for a one-to-one, let him phone me. My number is 0773261510, let him contact me and I’ll have a one-to-one with him and I’ll suppose I'll convince him to vote YES. I see he’s moving towards me and I’m happy about that.

GONDA: Professor Raftopoulos?

RAFTOPOULOS: Look I think that Zimbabwe is coming out of a long history of repression, both in the colonial period and in the post-colonialism period where the law and constitutionalism have been used adversely to close down rights. I think what we’re hoping for now is to open up that debate, to open up that possibility, to move our post-colonial state and the party, the parties that came out of the liberation movement into a broader discussion around democratic rights. That’s all democratic rights – civic, human, economic, redistributive rights. To open up this discussion in a much more transparent way and to allow for more tolerance. It’s something that I think Zanu PF in particular has a great deal to learn and I think that we all as Zimbabweans must fight to push that process forward.

GONDA: And Mr Majongwe?

MAJONGWE: I think the most important thing that we basically want to say is that – this document was hurriedly produced; it is a Zanu PF document. Sorry for me to say this but I think that the MDC was hoodwinked into believing that this document speaks and represents their interests. It doesn’t. To some of us a NO vote is guaranteed whatever the outcome because we don’t agree with how it was done and where we are being taken to as the citizens of this country.

GONDA: Thank you very much Mr. Raymond Majongwe from the ZCTU, Professor Brian Raftopoulos political commentator, and COPAC co-chairman Mr. Munyaradzi Paul Mangwana, thank you for a lively and informative debate.

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