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Draft Constitution Amendment No. 19 agreed – Bill Watch 47/2008
Veritas
October 29, 2008

A draft Constitution Amendment No. 19 was agreed by the negotiators of the three parties on 27th November after three days of discussions in South Africa. The draft now has to be approved by the three principals and this means waiting until all three are back in the country. As the Bill cannot be introduced into Parliament until at least 30 days after gazetting, it is now impossible for it to be introduced into Parliament this year.

The negotiation of the draft was fraught with difficulties. ZANU-PF provided their draft, which they had drawn up without consultation with the other parties. MDC-T had their own preparatory draft. It would have been more sensible to have had all three parties working on producing one consolidated draft starting immediately after the conclusion of the Power-Sharing Agreement. Nonetheless, after marathon sessions the parties managed to come to some agreement and all initialled a combined draft.

Key points of agreed Constitutional Amendment

We will distribute a summary/commentary on the draft [the “draft” refers to the draft Constitutional Amendment] as soon as possible. In the meantime we note the following:

Recognition of Mugabe as President

Tthe draft provides for the post of President to “continue to be occupied” by Mr. Mugabe, and for Mr. Tsvangirai to occupy the post of Prime Minister [see section below on Motlanthe comment on recognition]

Unilateral cancellation of inclusive government

Unlike the ZANU-PF draft, the draft does not authorize Mr Mugabe [as President] to terminate the inter party agreement unilaterally

Recognition of original agreement of 11th September

The draft includes a schedule which sets out the text of the Power-Sharing Agreement and reflects the text signed on 11th September, including wording not present in, or differing from, the text signed at the formal signing ceremony on 15th September: [Note: The draft Constitution uses the term “Inter-party Political Agreement”. >From now on we will use that term [abbreviation IPA] instead of the terms “Power Sharing Agreement” and “Global Political Agreement” used in previous bulletins.]

The provision on appointments to senior government positions

[e.g. Permanent Secretaries, Ambassadors] having to be agreed by the President, Vice-Presidents, Prime Minister and Deputy Prime Ministers, was in the original IPA and is now in the draft constitution.

Some provisions in the draft still left open to agreement

The draft leaves it to the Principals whether to confirm the original wording [11 Sept] or the use the altered version [15 Sept] of the IPA in certain provisions – these provisions are annotated in the draft as being subject to rectification or confirmation by the Principals. These provisions deal with:

• the number and sharing between parties of additional appointed Senate seats
• appointment of Vice-Presidents, Prime Minister and Deputy Prime Ministers from outside the ranks of members of Parliament
• appointment of Ministers from outside the ranks of members of Parliament

Recognition of what "de facto" but not legally installed Ministers have done

Unlike the ZANU-PF draft, the draft does not seek to validate measures taken after the 26th August by persons functioning as Ministers but doing so in breach of the Constitution because they do not hold seats in Parliament.

No provision for existing Zimbabwe Electoral Commission [ZEC] members

Unlike the ZANU-PF draft, there is no express provision retaining existing ZEC members in their positions until the expiry of their terms of office

By-Elections

The draft does not contain a clause stopping by-elections for 12 months, notwithstanding that the IPA requires such a ban

National Security Council

The draft does not go into detail on the composition and functions of the National Security Council

The Kariba Draft Constitution’s provisions on Citizenship, Independent Commissions [Electoral Commission, Human Rights Commission, Anti-Corruption Commission and Media Commission] and the Parliamentary Committee on Standing Rules and Orders are incorporated into the draft as required by the IPA

Outstanding issues before formation of inclusive government

Although there was no open apology for producing an “altered” version of the IPA at the signing ceremony, most of MDC-T’s outstanding issues arising from these alterations have been dealt with within the provisions of the draft Constitution Amendment.

But, the MDC-T has issued a statement saying that several other issues, which had been left unresolved by the facilitator and the SADC Summit of 9th November, had not been dealt with in the draft Constitutional Amendment, and still need to be resolved:

• the equitable allocation of Ministries
• sharing of provincial governorships
• functions and constitution of the National Security Council
• MDC-T dissatisfaction with SADC/Mbeki

The negotiations on the Constitution Amendment were facilitated by Mr Mbeki’s team but not by Mr Mbeki personally. On 19th November MDC-T Secretary-General Biti wrote to Mr Mbeki criticising the SADC Summit’s decision of 9th November. In response Mr Mbeki sent a 10-page letter dated 22nd November to Mr Tsvangirai strongly criticising the MDC-T’s attitude. Mr Tsvangirai released a statement dealing mainly with the humanitarian crisis in the country but also stating the MDC-T'S position on Mr. Mbeki, He said “…we have written to the Chairman of SADC, South African President Kgalema Motlanthe, detailing the irretrievable state of our relationship with Mr Mbeki and asking that he recuse himself.”

Recognition of Mugabe presidency

After meeting President Khama of Botswana on 23rd November, SA President Motlanthe told the South African public broadcaster that: "We agreed that, with regards to Zimbabwe, the next step really is to ensure that we unblock the impasse for them to take Amendment 19 through the senate and the assembly, so that Tsvangirai could be sworn in as prime minister and Mutambara as the vice prime minister and Mugabe as the president, so that once the three of them have been sworn in they can then form an inclusive government." Commentators have pointed to the statement as a departure from the policy followed by the Mbeki presidency. It underlines the fact that for at least some of our neighbours the legitimacy of Mr. Mugabe's presidency depends on compliance with the IPA.

Reappointment of Dr Gono as Reserve Bank Governor

Mr Mugabe’s reappointment of Dr Gono as Governor of the Reserve Bank for a second full 5-year term of office expiring in 2013 was surprising coming as it did just before the talks on the constitutional amendment. The IPA envisaged the President making such key appointments in consultation [meaning in agreement] with the Prime Minister. Dr Gono’s policies and actions have been consistently condemned by the MDC-T. A short-term extension or an acting appointment – or an appointment acceptable to the MDC-T – would have been more appropriate. The appointment can also be questioned on legal grounds. Under the Reserve Bank Act the appointment should have been made after consulting the Minister of Finance, but consultation cannot have taken place because the present incumbent is functioning as Minister in contravention of the Constitution as he does not hold a seat in Parliament [Constitution, section 31E(2)].

Court cases

Land acquisition – Zimbabwe Supreme Court dismisses application under Bilateral Investment Protection Agreement

A five-judge Supreme Court bench has dismissed an application by a Danish citizen in which he claimed the compulsory acquisition of his farm was contrary to the Bilateral Investment Protection Agreement between Zimbabwe and Denmark. Announcing the decision, Deputy Chief Justice Malaba said the court’s reasons would be provided later.

Land Acquisition – SADC Tribunal decision against Zimbabwe Government

Judgment was given in favour of the landowners in the Campbell case. The basis of the decision is that the constitutional provision under which the Government acquired agricultural land in 2005 is in breach of provisions of the SADC Treaty requiring member States to observe the rule of law and not to discriminate on racial grounds. [The breach of the rule of law is the denial of access to the courts for landowners aggrieved by compulsory acquisition.] [Electronic version of judgment available] The Tribunal has accordingly ordered the Government:

• to ensure that the applicants enjoy undisturbed possession and ownership of their land [this refers to the 75 applicants still on the land]
• to pay compensation to the three applicants who have already been evicted from their land.

Enforcement of the Tribunal’s decisions against member States is a matter for the SADC Summit. So, if the Government does not comply with the Tribunal’s order, the applicants will have to go back to the Tribunal with proof of non-compliance, and ask the Tribunal to refer the matter to the Summit. [Note: The Government’s failure to comply with the Tribunal’s earlier interim protection orders in the Campbell case was referred to the August SADC Summit. The Summit referred the matter to the Committee of Ministers of Justice for advice. Further developments are awaited.]

Election cases

None of the pending election petition appeals to the Supreme Court has been set down for hearing. The Supreme Court is now on vacation until mid-January, so hearings before then are unlikely, The same applies to Mr Chiota’s application for the setting aside of the Presidential election result on the basis of nomination court irregularities.

Update on Statutory Instruments

SI 168/2008 – Roads (Fuel Levy) Notice – this sets out the details of a levy on petrol and diesel to be paid to the National Road Administration [ZINARA] by licensed fuel importers. The levy is for the benefit of the Road Fund established by the Roads Act [section 22]. The Fund must be used primarily for road maintenance.

SI 105C/2008 – this notice, gazetted on 29th October under the Customs and Excise Act, fixes rents for State warehouses. [Electronic version available]

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