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Zimbabwe's proposed Constitutional Amendment 19 - A step towards transition?
Derek Matyszak, Research and Advocacy Unit Zimbabwe
February 12, 2009

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On 11th September, 2008 the opposition Movement for Democratic Change (MDC) formations (MDC-T[svangirai] and MDC-M[utambara]) and Zimbabwe African National Union – Patriotic Front (ZANU PF) concluded what was touted as a “power-sharing” agreement designed to resolve the political impasse in Zimbabwe. The agreement was officially signed with much fanfare on the 15th September, 2008.

The provisions of the September agreement have been analysed in detail in Losing Focus: Zimbabwe’s Power-Sharing Agreement (available from Idasa’s SITO web site). In order to make the agreed new “inclusive government” part of national law, the agreement stipulated that a constitutional amendment, number 19, would be passed for this purpose.

The September agreement is replete with ambiguities, vague drafting and omissions. This is not simply a result of poor drafting skills but a deliberate means to meet the imperative of concluding an agreement while many issues remain in dispute. In formulating a precise legal document based on the September agreement to be submitted to parliament as constitutional amendment 19, these points of contention required resolution. Since the contentious points were in essence a continuation of the unfinished business of reaching an accord, the negotiations on agreeing a draft amendment were expected to be protracted. The MDC, it was predicted, would attempt to formulate the amendment in a way that would give it some real power. As Losing Focus indicated, the letter of the September agreement left Mugabe’s powers largely intact, conceded very little to the MDC and made the post of Prime Minister, to be occupied by MDC leader, Morgan Tsvangirai, largely nominal and devoid of any substance.

Talks on amendment number 19 began on 25th November, 2008. Astonishingly, the negotiators reported an agreed draft two days later. The draft was to be submitted to the negotiators principals for signature and consent.

However, during the period of the talks, a cholera outbreak which erupted in Zimbabwe due to the collapse of water reticulation and health care centres, added a new urgency to the Zimbabwean crisis. It appears that both parties thus were placed under extreme pressure to reach a quick agreement on amendment 19. As a result, instead of adopting the tightly drafted and comprehensive document proposed by the MDC, the ZANU PF draft or an amalgam of both, once again resolution of disagreements between the parties was deferred. In essence the parties simply agreed to incorporate the executable part of the September agreement, Article 20, relating to the structure of government into a schedule in amendment 19. This schedule is to apply and override any parts of the Constitution contrary to its contents. It is worth noting here that the incorporation of only Article 20 of the agreement as a substantive part of amendment 19 is a tacit admission that the other omitted Articles are little more than political posturing, as Losing Focus suggests.

Changes to the Constitution other than those introduced by the incorporation of Article 20 of the September, agreement are limited.

The first clause of the proposed amendment deals with the question of the attainment and retention of Zimbabwe citizenship. Most importantly, the prohibition on dual citizenship, which the MDC had sought removed, remains in accordance with the ZANU PF draft. A section on “Political Rights” further entrenches ZANU PF's policy in this regard by incorporating the effect of a controversial Supreme Court's decision that removed the right to vote for non-Zimbabwean citizens who are permanent residents.

The amendment also adds a section XB relating to Commissions, introducing a Human Rights Commission, and reducing Mugabe's power to determine the composition of other commissions, including the Zimbabwe Electoral Commission, Zimbabwe Media Commission (brought into the Constitution from the Access to Information and Privacy Act) and Anti-Corruption Commission.

The result of reaching “agreement” on amendment 19 by introducing a few piecemeal changes and then incorporating Article 20 of the September agreement wholesale is a legal “dog's breakfast”. The precise legal document drafted and proposed by the MDC as amendment 19, removed all ambiguities and filled vital gaps left by the agreement. By ignoring these defects and simply incorporating Article 20 of the agreement wholesale into amendment 19, not only do all the gaps and ambiguities of the agreement remain, but, in providing that Article 20 will override the Constitution, which could previously be referred to, to resolve some ambiguities and fill some gaps, the problems are compounded.

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