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Talks, dialogue, negotiations and GNU - Post June 2008 "elections" - Index of articles
proposed Constitutional Amendment 19 - A step towards transition?
Matyszak, Research and Advocacy Unit Zimbabwe
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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.
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
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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