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Constitutional Amendment 18 of 2007 - Index of articles, opinion and anaylsis
of "Hot Seat" interview with Prof Welshman Ncube on Amendment
Violet Gonda, SW Radio Africa
September 25, 2007
the special index of articles, analysis and opinion on Constitutional
On SW Radio
Africa's 'Hot Seat' programme, journalist Violet Gonda interviews
Professor Welshman Ncube, the secretary general of a faction of
the MDC on the controversial Constitutional
Amendment no.18 which both MDC formations have given their nod
Gonda: My guest on the programme Hot Seat today is Professor
Welshman Ncube, the Secretary General of the Arthur Mutambara-led
MDC formation. Thank you for joining us Professor Ncube.
Welshman Ncube: Thank
Now there are serious divisions over Constitutional Amendment no.18
and many especially in the civil society have accused the opposition
of betraying the people by agreeing to the Amendments with the ruling
party. Can you first of all tell us why both MDCs reached this agreement?
Welshman Ncube: Well
let me, Violet, first say that the agreement or understanding on
Amendment no.18 must be understood in its proper context. I am dismayed
at the dishonest presentation of what it stands for and taking it
completely out of context. The context is that you have ongoing
dialogue and discussions over a wide-range of issues, which have
caused conflicts in our country. And as part of that process there
came the issue of Amendment no.18, which Zanu PF wanted to pursue
and that agreement is a side agreement within the context of a broader
Why did we reach
that agreement? Firstly, you have to realise that we have agreed
in the dialogue that there are five items for negotiations. First:
A new constitution for Zimbabwe. Secondly: New electoral laws. Thirdly:
Reform of security legislation including POSA
(Public Order and Security Act). Fourthly: reform of media laws
including the Broadcasting
Services Act as well as AIPPA
(Access to Information and Protection of Privacy Act). Then finally:
the political climate in the country. Under the political climate
you have such things as sanctions, the use of traditional leaders,
the youth militias, violence and so forth and so on. All those things
are on the agenda.
And in our presentation
in parliament on Tuesday the 18th, we made it very clear that the
side agreement on Amendment no.18 does not detract to our commitment
to a new constitution before the elections, and that within the
auspices of the dialogue there is the understanding we are negotiating
the modalities of how to come up with a new constitution before
And the question is:
how can we reconcile the Zanu PF position -- which has been unilateralist
in the past, which has excluded public participation -- with our
preferred position of having an open, transparent process which
is as inclusive and is as participatory as possible? And that is
what is being negotiated…how do we find a compromise between
those two positions? And that has to be done before the elections
and that is agreed upon and is being negotiated around.
So it is very clear that
when we therefore agreed to the deal on Amendment no.18 it was within
a context of undertakings and understandings that the question of
a new constitution before elections remains firmly on the agenda.
That is the context that all those who have criticised this have,
in my view, deliberately ignored because we have made it clear in
our presentations in parliament. Even Zanu PF itself made it clear
that this is a temporary measure pending agreement around the modalities
on how to come up with a new constitution.
But Professor Ncube, others would ask that if you are negotiating
for a new constitution what is the point of wasting time amending
the present constitution?
Welshman Ncube: Good
question. Remember in any negotiations you cannot get the perfect
world you want. The perfect world we would have loved - if we could
get it - was a situation where we did not have to deal with any
piecemeal Amendments. But the world is not always perfect, you don’t
always get what you want, you have to compromise. We were faced
with a situation where Zanu PF was saying they have resolutions
of its Central Committee, they have a commitment to proceed with
If we did not want to
discuss Amendment no.18 they would proceed with it as it was published.
Or if we wanted to discuss it or were willing to discuss it or were
persuaded to discuss it, we could then deal with our objections
on content. What is it in the original Amendment no.18, which we
were unhappy with? We then discussed that and we therefore were
able to change significantly the original Amendment no.18.
For instance: Out went
the appointed members of the House of Assembly. Secondly: All elections
were now synchronised in one day including local government, parliamentary
as well as presidential. The variance factor in delimitation, which
they were increasing to 25%, they agreed to put it back to 20%.
The question of composition of Senate, which was disproportionately
made of unelected people, we attempted to re-balance it by providing
more senators who are elected. They became 60 of them. And all of
those things are an improvement. A marked significant improvement
on Amendment 18!
If anyone then says it
would have been better for us to allow Zanu PF to proceed unilaterally
with an amendment, which contained many problematic provisions rather
than at least improve on it, then I do not know what we want.
For me and for us, it
is better to have a better content than to have the worst possible
content because we are saying we do not want to talk about Amendment
no.18. Therefore in our view Amendment no.18 is a great improvement
on content. Fair and fine there are those who will quibble with
the question of whether or not this little concession does not violate
the major principle of saying let us make a new constitution. In
our view, it does not, for the simple reason that it is a stepping-stone
to the bigger question. If we can clear Amendment no.18 and end
up with an open and transparent constitution before the elections,
what is the problem with that?
But let’s assume it’s a step in the right direction
as you seem to be implying here. What about the other outstanding
issues - like the voter's roll, the eligibility of voters outside
the country? Why couldn't you as the opposition “as a confidence
building measure” persuade Zanu PF to allow postal votes or
even to dismantle youth militia bases before you agreed to such
Welshman Ncube: First
of all with Amendment no.18. you could only discuss those issues,
which were already raised in the public Amendment no.18. You could
not start to add issues, which were not covered by the original
Amendment no.18. That’s No 1. Secondly, all those issues,
which you raised, are firmly on the agenda. I will not pre-empt
and I will not disclose things, which are supposed to be confidential
at this stage. But everything you have referred to is firmly on
the agenda and being discussed.
And indeed some
of the issues you raised have actually been cleared in terms of
the dialogue and you have to appreciate that everybody wants all
the five items to be dealt with so that at the end of the dialogue
you have one comprehensive agreement covering the five agenda items
- the constitution, electoral laws, security legislation, media
laws, the political... and some of them have been cleared or will
be cleared. There will be compromises, there will be agreements
around them. But because you have five items on the agenda all of
which have to be cleared at the end of the dialogue, you cannot
then have a situation where you are taking out some of those things.
You need a comprehensive agreement covering all the five agenda
items. And all those things you refer to are on the agenda.
But when are the people or the general public going to
find out what exactly is being discussed. And why is there so much
secrecy about these talks between the political parties?
Welshman Ncube: Well
firstly, that question is best asked to SADC and the SADC leadership.
The rules of the dialogue and engagement were set by SADC and were
set by the mediator. In their wisdom they believed that negotiating
in the glare of publicity would ensure -- in our polarised situation
-- that each of the sides will focus more on public grand-standing
and scoring points rather than doing proper negotiations. They then
created the rule - which all the parties accepted - that the negotiations
should remain, in terms of content, remain confidential. So I am
not the best person to answer that question. That question is best
answered by the mediator and SADC who in fact - in their wisdom,
found it necessary to impose that confidentiality clause.
But how then are you going to be held accountable for the decisions
that you actually make if you can’t at least tell the public
the process or progress of the talks?
Welshman Ncube: Firstly
we are accountable to the structures of the political parties we
represent and we report confidentially to our National Councils,
Zanu PF to its Central Committee or Politburo, the two MDC formations
to their National Councils and that is where the accountability
lies, in the first instance.
But does it not bother you as the opposition leadership
that there is nobody else - even from the civic society - being
informed but yourselves. Is this not elitist?
Welshman Ncube: No it
is an issue between the mediator and the civic society.
Now the common understanding right now is that you have
sold out, as the opposition, and some prominent civic leaders have
called it a betrayal of principles - in the way that you have agreed
to these amendments with the ruling party. What can you say about
Welshman Ncube: Firstly,
everybody has a right to form the opinion they form. We respect
the opinion held in good faith by anyone who holds that opinion.
Regrettably, in our view, that opinion is misinformed and downright
wrong. As I have explained previously, without having to repeat
myself, there is no sell-out agreement of any kind. This is a comprehensive
dialogue. The agreement on Amendment no.18 must be understood within
the context of a confidence building, it must be understood within
the context of that it is a side agreement. The broader issues,
the fundamental issues, are being addressed in the main dialogue
and clearly therefore there is nothing about selling out in respect
of this specific issue at all.
But Professor Ncube does it not concern you though that
you now don’t have the backing of the support base in the
civic society? Let me just quote some of the responses from leading
civil and human rights leaders who spoke about this in the different
newspapers or internet sites. The NCA
chairperson Dr. Lovemore Madhuku said ‘you have capitulated
as the opposition.’ Another human rights lawyer Arnold Tsunga
is also quoted saying ‘it is surprising that the two MDCs
could enter deals with Zanu PF when they know the deteriorating
human rights conditions outside parliament.’
the spokesperson of the National
Association of NGOs, said there was no citizen participation
whatsoever in the formulation of that amendment. Now as I asked
you before - does this not concern you that you don’t seem
to have the backing from the civil society?
Well firstly you have to ask yourself what is the proper role of
civil society. The proper role in our understanding of civil society
is not to be a front for any political party. It is not to be an
extension of any political party. They are to be independent, they
are to play their advocacy, they are there to criticise and to basically
mobilise for those things that they want. And consequently, in my
view, if they hold a different opinion on this particular issue
they are entitled to voice that opinion even if in our view that
opinion happens to be wrong. And that is their proper role. And
therefore you should not seek to conflate and subsume civil society
as an extension of the MDC or the opposition.
is about politics. It is about competing for political office. Civil
society is about advocacy, about specific certain issues, which
fall within the areas of those civil society organisations. And
for me the most important thing is that civil society remains independent
and plays that independent role and if they hold the opinions they
hold and they have articulated them - that is very good, in fact
that is how it should be.
But do you not think what they have to say about the process is
important and is it fair on the general populace if you don’t
consult with stakeholders?
Welshman Ncube: Firstly
it is a downright wrong and a lie to say we have not been in touch
and we have not been consulting with the civil society. We have.
And if we disagree we disagree. You cannot say because we have disagreed
we have not consulted, and we have not discussed.
Secondly, you ought to
realise that civil society, as I have repeatedly been saying, ought
to be independent, ought to have its own views and indeed in a proper
society, in a proper democracy, they should not always be agreeing
with the opposition. They should not always agree with the ruling
party or the government of the day and I do not see anything wrong
in them holding a different opinion and articulating that opinion.
And if those of us who are in the political forefront consider that
they have valid opinions - those opinions would be taken into account.
But you know, I spoke with the NCA leader, Dr Madhuku and
he said that he only saw this document after it was secretly passed
to him by a parliamentarian and it’s interesting that you
are saying that you did consult with the civic society. Now he says
this shows that the MDC cannot be trusted. These seems like harsh
words from the civic leader. What can you say about this?
Welshman Ncube: Violet
you’re flogging a dead horse, consultation does not mean giving
documents. It means talking and raising the issues that are at stake
and that was done. I do not wish to be involved in any slanging
match with anybody else. The fact that we are in disagreement is
acknowledged and is respected. Passing documents to people is not
consultations. Consultation is discussing the issues as they arise.
You were part of the civil society as the National Constitution
Assembly in 2000, where you actually agreed to reject anything that
is short of a people-driven constitution. So what really has changed,
did you not as an opposition agree never to agree to piecemeal amendments?
Welshman Ncube: First,
accept that the NCA position was never meant to be a fundamentalist
position. The most important thing was always about finding a new
democratic constitution. It was not holding a prisoner hostage to
a process (inaudible). A process is always negotiable as long as
at the end of the day there has been some participation, at the
end of the day there is a new democratic decision.
Secondly, amendment number
18 is merely, as I have repeatedly said in this interview, a side
agreement. There is an understanding that we will have to agree
on the modalities of coming with a new comprehensive constitution,
which will seek to reconcile our ideal open transparent people centered
With the Zanu PF way
you cannot maintain two fundamentally opposed positions forever.
You need to sometimes make a compromise and that is what we are
talking about. Where can we find a compromise, which will be reassuring
to everybody, which will allow us to have some public involvement
in the making of new constitution? That is why we are in the dialogue
and that is what we’ve been talking about over the last couple
But do you understand why your critics would ask about
why you are having these side agreements because it’s no secret
that Zanu PF has never played by the rules. What makes you think
that the ruling party will comply and play by the rules this time?
Well first, that is a strange question, we have no reason to think
they will play by the rules, we have no reason to think that they
will not. The whole point of a negotiation if you have a crisis
and you have a problem you will negotiate and say 'alright these
are the wrong things that we have been doing, we want them to come
to an end'. What is the technical agreement we can reach to bring
them to an end? And that is what we are doing. You cannot say because
in the past you have not respected agreements or you have done wrong
things, we can no longer find it useful to negotiate and agree on
new rules. It is an exercise in futility.
Imagine, for instance
in 1979 in the negotiations, the Patriotic Front says; ‘Ian
Smith has no record of observing agreements he has a record of violence
and therefore we can’t talk to him because we don’t
believe any agreement will be implemented.’ Imagine in South
Africa in 1994, them saying that the apartheid regime had a history
of violence, a history of breaching agreements therefore we can’t
talk to them to have a new agreement. That is plain nonsense. What
you need to do is to put that issue to the test. You negotiate,
have an agreement, have mechanism of insuring its enforcement and
put it to the test.
But truthfully speaking, what is the MDC getting out of
this because the violence is continuing, arbitrary arrests are continuing
and some even say that the MDC has unwittingly given Mugabe’s
electoral process legitimacy which will ensure that he will go to
elections in a much stronger position. Did Zanu PF really need your
endorsement? It is in the majority after all and could have passed
this amendment without your approval. So why did you bother?
Welshman Ncube: That
is plainly wrong, it is plainly wrong and also dishonest! The amendment,
which was passed was not the same Amendment which Zanu PF wanted
to enact! I will not repeat what I said -- all the improvements,
which are on Amendment no.18 in terms of composition of the House
of Assembly, in terms of synchronisation of elections. So if we
had let Zanu PF do what it wanted it would have passed the original
Amendment no.18, which would have contained fundamentally wrong
things that we did not want to be in place. That is the point that
ought to be underlined and underlined clearly, that Amendment no.18
as passed is a different creature, it is a different animal from
the original published Amendment no.18.
And secondly, we have
said painstakingly Amendment no.18 is not the end. It is not the
beginning and the end. It is merely a confidence building measure
and as I have painstakingly tried to say, we have firmly on the
agenda, the issue of a new constitution before the election.
But I am sorry Professor Ncube to keep going back to this same issue,
but for years the opposition has questioned Mugabe’s legitimacy,
and for years you have been saying Zimbabweans have no confidence
in Zanu PF. And you even branded yourselves as a government in waiting
and now you seem to have made a U-turn in the name of ‘confidence
building measures.’ Your critics ask; ‘whose confidence
are you trying to bring out now?’
Welshman Ncube: Well,
firstly does that imply if the Mugabe regime is illegitimate it
means that you can’t negotiate with it to create new rules?
Unless of course you have arms and you can fight them and drive
them and then you have imposed peace terms. And therefore as long
as they are there and are a force to reckon with and you want to
change the situation you need to be able to dialogue with them.
It is as plain as that. Anything else, unless you have a war and
you can drive them out of the country, is sustainable.
Were you put under pressure by the South Africans to agree with
Welshman Ncube: Certainly
not. The role of the South Africans is a facilitation role. They
simply bring the parties together. If there is a dispute they help
the parties find alternative ways of compromising around that disputed
issue. So there is no role to pressurise anyone on content, they
can put pressure on people to stay in the negotiating table until
they agree but they definitely do not pressurise on anyone on what
to accept and on what not to accept.
Violet: You said during
your contribution in parliament last week that at the negotiating
table you are there as one MDC and that you agreed to endorse this
amendment as one MDC. We heard that the two MDC leaders Morgan Tsvangirai
and Professor Arthur Mutambara Welshman Ncube: Well we are talking
about the SADC dialogue and Amendment no.18 and that’s a completely
Amendment no.18 has to do with elections and surely the public deserves
to know what is happening in terms of the two warring factions in
Welshman Ncube: I am
afraid I have nothing further to add to our National Councils’
resolutions and that is in the public arena and there is nothing
new on the issue.
But come elections are you going to participate as two MDC’s
or one MDC?
Welshman Ncube: Violet
there is absolutely nothing new on that subject! As things stand
at the moment there is no agreement to fight elections as one. We
have sought that agreement we have placed on public record all the
things that we did in order to obtain an agreement. Regrettably
no agreement has been accepted by both sides and that is where things
stand. And there is nothing else I can add unless there is a movement
in one direction or another at the moment there is nothing new.
But isn’t it important to unify yourselves as the
opposition first before you commit the nation to be committed to
Zanu PF? We are not hearing anything about the unity of the two
MDC’s and is this not important first to deal with or to tackle?
Welshman Ncube: Our National
Council has pronounced on that, that we put a united front, a coalition
against the Mugabe regime and that we were instructed to do everything
we could to secure it and regrettably we have not been able to do
so. And it doesn’t matter how many times you ask that question,
the answer will remain the same.
Gonda: And finally Professor Ncube, come elections and
there is no new constitution, will the MDC still participate in
Welshman Ncube: Well,
that’s not a decision for me. All I know is that at the end
of the SADC dialogue and if it flops and there is no new constitution
and nothing happens, the MDC collectively, the National Council
will have to make their resolution one way or another and it is
not for me at this stage to pre-empt that decision.
Gonda: Thank you very much Professor Welshman Ncube.
can be heard on SW Radio Africa ’s Hot Seat programme (25
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