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Transcript of 'Hot Seat' interview with lawyer Derek Matyszak
Violet Gonda, SW Radio Africa
March 06, 2009

http://www.swradioafrica.com/pages/hotseat020309.htm

Matyszak recently wrote a critical analysis of Constitutional Amendment #19, which he says is ‘stuffed with ambiguities, vague drafting and omissions.’ The lawyer details a shocking list of violations of the constitution, since the setting up of the inclusive government, which include the unconstitutional appointment of additional Ministers. Matyszak said Zimbabwe is now in a peculiar and unique situation where the constitution actually specifies who the Prime Minister should be, by name.

Violet Gonda: My guest on the Hot Seat programme is Derek Matyszak, a former lecturer in the faculty of Law at the University of Zimbabwe. He’s now with the Research and Advocacy Unit, Zimbabwe. Derek recently wrote a critical analysis of Constitutional Amendment No. 19 which was entitled “Losing Focus – Zimbabwe ’s Power Sharing Agreement”. Hi Derek.

Derek Matyszak: Hi Violet.

Violet: You have studied the Zimbabwe Constitution and the Amendment No 19, so let’s start with getting your thoughts on the issue of the appointments of Permanent Secretaries and Ambassadors. What is your understanding of who should appoint them?

Derek: Well there are in fact four different clauses in both the Constitution and the Agreement which deal with these appointments. We’ve got Section 77 of the Constitution which deals with the appointment of Permanent Secretaries and Section 78 of the Constitution which deals with the appointment of Ambassadors. But both those clauses need to be read in light of Amendment No 19 which now provides that any appointment the President makes in terms of the Constitution or any Act of Parliament must be made with the agreement of the Prime Minister. So that means the appointments of the Permanent Secretaries have to be made with the agreement of Morgan Tsvangirai and the same would apply to the Ambassadors and the same would apply to any government appointment or any appointment in terms of the Constitution or Act of Parliament.

And then on top of that there’s a clause which duplicates what I’ve been talking about which says any senior government appointments have to be made with the agreement of Tsvangirai and the Deputy Prime Ministers. So there are these various things which make it clear that the permanent secretaries, as a matter of the Constitution must be appointed with Tsvangirai’s agreement.

Violet: Mugabe recently appointed new Permanent Secretaries without consulting his partners in the inter-party political agreement and I actually interviewed retired High Court Judge, Justice George Smith and he said the appointments do not breach Zimbabwe ’s law, so are you saying his assertion is wrong?

Derek: Well I read the transcript of your interview with George Smith and it seemed to me that perhaps Justice Smith overlooked the fact that Article 20 of the September Agreement was incorporated wholesale into the Constitution of which was the Amendment 19 and it specifically provides that where the older Constitution conflicts with Amendment 19 and particularly the Agreement which has been incorporated now into the Constitution, the Agreement will override the Constitution. The part of the Agreement which has be made part of the Constitution overrides the previous provisions. So Justice Smith was looking at Section 77 and 78 of the Constitution but seemed to be unaware that those provisions now had to be read in accordance with that part of the agreement which has now been incorporated into the Constitution by virtue of Amendment No 19.

Violet: I also understand that Schedule Eight of Amendment No 19 deals with government operation so does this override the previous Constitution and is Amendment 19 the new Constitution?

Derek: Well Amendment 19 basically knocks our constitution into a legal nightmare because what Amendment 19 did was to take a portion of the September Agreement and the effect of part of the September Agreement is Article 20 which deals with the structure of government - and they took this part of the agreement and said this will now be part of Constitution as Schedule Eight. So unfortunately Article 20 of the Agreement was not drafted in the way legal legislation should be drafted. It was drawn as an agreement between the parties and not particularly well drawn at that. And we now have this ill-drawn agreement or section of this ill-drawn agreement actually incorporated into the Constitution and its provisions will override any part of the Constitution which is contrary to it.

Violet: Lets talk about some of these issues; you describe it as an ill-drawn Agreement and you wrote in your paper that the September Agreement is stuffed with ambiguities and vague drafting and omissions. Can you tell us what these are?

Derek: Well let’s go back to the Clauses I was referring to before about the appointments - let’s look at the Permanent Secretaries. If you look at Clause 20.1.7, it says that the parties agree that with respect to the occupants of senior government positions, such as Permanent Secretaries and Ambassadors, the leadership in government comprising the President, the Vice Presidents, the Prime Minister and Deputy Prime Ministers will consult and agree on such, prior to the appointment, alright? Now just a few Clauses before that, it says any appointment in terms of the Constitution will be made with the agreement of the Prime Minister only not that whole list of people that there has to be an agreement with. Now the appointments of the Permanent Secretaries are appointments in terms of the Constitution, so which one of those two Clauses apply? They don’t quite contradict each other but they refer to different people whose agreement has to be sought in terms of the Constitution.

So you immediately have a contradiction there, or two Clauses which are not quite compatible. And that kind of thing happens throughout the Agreement and there are various Clauses in the Agreement which don’t actually say what I think the parties wanted them to say.

Another difficulty with Constitution Amendment No 19 is that because I have said it’s just the Agreement, a portion of the Agreement is tacked into the Constitution, is that normally an amendment which provides for the post of a Prime Minister would indicate things like the person’s qualifications for office, the person’s term of office, how the person would be removed from office etc. What we have in fact is that Constitutional Amendment No 19 just simply says there will be an office of Prime Minister which post shall be occupied by Morgan Tsvangirai. So we have this very peculiar and unique situation that our Constitution actually specifies by name who the Prime Minister must be.

So this means for example, that if Morgan Tsvangirai lost the confidence of his party, it would require a Constitutional amendment to put another Prime Minister in place because the Constitution specifically says that the Prime Minister has to be Morgan Tsvangirai which is quite ridiculous.

And then the other thing it also leaves out is that although Mugabe purported to swear in Morgan Tsvangirai as Prime Minister on February 11 th, there is in fact no provision in the Constitution for swearing in the Prime Minister. There’s a provision for swearing in Ministers, there’s provisions for swearing in the President and Vice Presidents, there’s absolutely no provision for swearing in the Prime Minister. So the little ceremony they had on the 11 th of February, they basically just sucked it out of their thumb, it didn’t in fact exist in terms of the Constitution.

Violet: So that ceremony was unconstitutional?

Derek: Well it would have no basis in law. You are entitled to have a little ceremony like that, it’s neither here nor there, it’s just completely meaningless. And of course the other point to bear in mind, is that that swearing in ceremony took place on the 11 th of February, whereas Constitutional Amendment No 19 only became Law on the 13 th of February, so even if there was a provision for the swearing in of the Prime Minister, it wouldn’t have been law at that point in time that they had the ceremony.

Violet: In your view, how could all this have happened and do you think it was just an anomaly, a mistake to actually put Mr Tsvangirai’s name in the Constitution?

Derek: Well the way it came about is because there is another Clause which says ‘pending the enactment of Constitutional Amendment No 19, Mugabe shall appoint Morgan Tsvangirai as Prime Minister’. Now of course, that is a ridiculous clause to have because if Tsvangirai was appointed Prime Minister pending the enactment of Constitutional Amendment No 19 would have no effect in law. So that was a ridiculous Clause in the first place. But Mugabe did not in fact appoint Morgan Tsvangirai as Prime Minister pending the enactment of Constitutional Amendment No 19 or did it two days before the enactment, so that Clause - the drafters of the Agreement had anticipated that Morgan Tsvangirai would be in office as Prime Minister prior to Constitutional Amendment No 19 coming into effect and that didn’t really happen, it wouldn’t in fact have had any legal effect if it did happen so it’s just part of this very ham-handed drafting that I was referring to earlier.

Violet: And what about the issue of the ministries because as I understand it, they had agreed that they would have 31 ministries or ministers, but this is not the case as we now have this bloated government, so what does the Constitution say about this?

Derek: Well again the portion of the September Agreement which is now part of the Constitution - Article 20 - is very clear on it. It says there will be 15 Ministers nominated by Zanu-PF, and there will be 16 Ministers nominated by the combined MDCs. That is our Constitutional requirement; it’s not open to Mugabe or Tsvangirai to just agree amongst themselves to increase the number of Ministers. And any number of Ministers purportedly appointed over that quota of 15 for Zanu-PF and the quota of 16 for the combined MDC , those ministers purportedly appointed over that quota are invalid and unconstitutionally appointed. The appointments are invalid in terms of the Constitution.

Violet: Is it known which Ministries or which Ministers are these?

Derek: Well that’s where it gets complicated because when I watched the swearing in of Ministers on television, they all took the oath simultaneously so you had for example, on Friday the 13th, you had 35 Ministers all holding up their hands and taking the oath and because they all spoke on top of each other, you couldn’t really hear what they were saying. So the validity of that oath is a little bit legally suspect.

But more importantly, the Constitution provides that not only must they take the oath but they must also subscribe to the oath. So it seems that after they put the verbal oath they went and signed the three oaths they have to take in order to enter in to office, so it seems to me that the Ministers who signed the oaths last would be the Ministers who are not constitutionally appointed. But that would be the Ministers that signed the oath after the particular quotas were reached, so it’s not the last ten Ministers to sign but any Zanu-PF Minister who signed after the quota of 15 had been reached would be unconstitutionally appointed and any MDC Minister who signed after the quota of 16 was reached would be unconstitutionally appointed.

Violet: So by accepting the increase of Ministers, is the MDC an accomplice in the breach?

Derek: They certainly are and it is extremely ironic that in parliament we heard Morgan Tsvangirai give his inaugural address to parliament and he stated that firstly we must lead by example and the GPA, the Global Political Agreement commits all parties to respect and uphold the Constitution, other laws of the land and to the principles to the rule of law. And the government made that statement when the very government, the very first step of the new government was to violate the Constitution by appointing ten extra Ministers. That’s clearly not an auspicious start Violet.

Violet: But Derek, on the other hand, the fact that the principals actually met and agreed to increase the number of the Ministers, doesn’t this constitute a justifiable waiver of the provisions of the GPA?

Derek: Well the Principals can’t really get together and agree to amend the Constitution. The Principals can get together and agree to amend the Agreement, the September Agreement, but once they’ve done that they then have to approach parliament to amend the Constitution, so that the Constitution then provides for the additional Ministers, they can’t simply make up the Constitution as they go along.

Violet: As you have studied these legal documents, is it true that the gazetted version of the Constitution Amendment No 19 is not the same as the one which was actually passed in parliament and if so, can you identify the differences in the one passed and the one gazetted?

Derek: Certainly. From what I understand from the NGO here which watches Bills and Acts which come out of parliament, the gazetted version of Constitutional Amendment No 19 omits three schedules that were in the document or the bill that was passed by parliament, and it omits Schedules 9, 10 and 11 and of those the most important is Schedule 10, because Schedule 10 refers to the Constitution making process and it set a timetable by which Zimbabwe is supposed to have a new Constitution, so by omitting Schedule 10, the implication is that the parties are no longer tied to that specific 18 month timetable for a new Constitution and the constitution making process could get dragged out for as long as Zanu-PF wants it to be dragged out.

Violet: So Derek, what is the impact of the principle of collective responsibility on the MDC ? Some people have said while Zanu-PF has developed a pattern of breaching the Agreement in certain cases, the MDC is complicit in the breaches because they are doing nothing while Mugabe is in breach of their own Agreement. So do you agree that the MDC is participating in a government that is in breach of the Agreement and does this make them complicit?

Derek: Well I wouldn’t say it makes them complicit Violet. The problem that the MDC leadership has is that they went into an agreement with Zanu-PF which gives them very, very little Executive Powers and we’ve seen over the last few days, the Prime Minister issuing instructions left right and centre but he doesn’t really have any powers to enforce those instructions. And he has just been ignored, so it wouldn’t be correct to say he is complicit in what’s happening - he’s just really powerless to do anything about it.

Violet: And of course, there are other people who are saying that we have seen Mr Tsvangirai and Mr Arthur Mutambara actually holding press conferences and talking about the violations. Is it possible that the MDC is highlighting these breaches for the record, so that when the time comes they will say they are withdrawing and cite all these breaches?

Derek: Well that’s possible; certainly people will be monitoring the

Agreement and seeing to what extent the new government measures up to democratic benchmarks, but the MDC leadership has manoeuvred itself into a very invidious position where it is unable really to properly condemn the breaches of the Agreement by the Zanu-PF leadership. And we’ve seen for example over the last few days the MDC trying to avoid putting the blame on President Mugabe for the fact that people are still being arrested, that demonstrators are still being beaten up, that none of the democratic norms, which are very easy to implement, they don’t take any time to put into place, it just requires restraint on the part of Zanu-PF, we’ve seen the MDC leadership refusing to condemn Mugabe for these things because they can’t because they’re trying to foster a unity government. So they try and say well it’s these hardliners within Zanu-PF who are trying to sabotage the Agreement, whereas in fact, it’s just business as usual for Zanu-PF, there’s just been no change there and we’ve heard Mugabe himself say that his birthday bash, he said I’m still in charge, nothing has changed and he’s absolutely correct in that regard.

Violet: And so in terms of the implementation of this deal, is there any recourse, even at SADC level especially when Zanu-PF has said it will ignore SADC judgements on land?

Derek: Well throughout the entire negotiation process, and I’m talking about really the negotiations that have been going on between Zanu-PF and MDC since early 2000, SADC has always come down on the side of Mugabe and this forcing and pressurising the MDC into this so-called power sharing agreement, I call it so-called because there isn’t much power share, really shows SADC’s complicity with Mugabe and they really just wanted this problem out of the way. And they knew they couldn’t get rid of Mugabe so the only solution for them was to disempower the MDC and that’s what they have succeeded in doing. As far as recourse to SADC is concerned, I wouldn’t hold your breath on that one. The only thing one can do really is to continue to highlight the lack of compliance of democratic norms in Zimbabwe and seek to have continued pressure placed on the people within Zanu-PF who are responsible for violating those democratic norms. Unfortunately as far as I could see from the news broadcast, we’ve seen Tsvangirai doing exactly the opposite and we see him calling for removal of sanctions, the targeted sanctions against the Zanu-PF leadership. But this is the invidious position that the MDC finds itself in by virtue of having entered into this agreement.

Violet: What could he do though?

Derek: Well what many people in Zimbabwe feel is that the MDC shouldn’t have entered into this Agreement without having any real power to bring about any change in Zimbabwe and that’s where the basic mistake was made and the MDC are now trying to say let’s make it work, and I don’t know what they mean by that because even if the Agreement was fully implemented it wouldn’t actually restore democracy in Zimbabwe. So perhaps as the months go by or the weeks go by and it becomes evident even to the MDC people at grassroots level that the Agreement is not going to bring about any change in Zimbabwe , then the MDC leadership might reconsider their position. It’s unlikely that they’d withdraw from the unity government; it certainly should be an option on the table.

Violet: What is your view, briefly, on the issue regarding the current debate around Omar al-Bashir, the Sudanese leader’s indictment and what are the implications for Zimbabwe ?

Derek: Well it’s good to see that the ICC is working effectively. It’s quite remarkable that the Bashir matter was actually referred to the ICC to the prosecution by the Security Council in the first place, so that holds up some hope that the countries who normally block these kinds of things, and we’ve seen in the case of Zimbabwe that China and Russia have played a significant role in preventing any action being taken over Zimbabwe, yet they seem to have been happy that the Bashir matter got referred to the ICC for investigation. So those things are all extremely positive in making the effective working of the ICC.

Certainly one can raise the complaints that perhaps the issues the ICC are dealing with are not evenly spread, that the ICC’s attention is drawn too much towards Africa - but that shouldn’t detract from the fact that where crimes against humanity have occurred, where war crimes have occurred, people should be prosecuted for them. And it’s very disappointing to see the AU countries rallying around Bashir in this regard because if that evidence exists then the AU must address that evidence. The ICC pre-trial court, the pre-chamber, I forget the official name for it, would not have issued that warrant of arrest if they weren’t satisfied that sufficient evidence existed to justify that warrant of arrest and the AU really needs to turn its attention to that fact.

Violet: I was going to ask also that can the provisions of the Rome Statute be deemed common international law because Zimbabwe hasn’t signed it and also some people are asking - does this mean that someone like Mugabe and his cronies will not be applicable?

Derek: Well the fact that Zimbabwe hasn’t signed the Rome Statute doesn’t preclude a Zimbabwean from being referred to the ICC for prosecution. It simply means that if a Zimbabwean is going to be referred to the ICC for prosecution, it requires a Security Council resolution to that effect. Whereas if a country was a signatory to the Rome Statute then the country itself could refer people, or a Zimbabwean national on the territory of the signatory to the ICC could be referred, sorry a signatory to the Rome Statute could be referred to ICC for prosecution. So the fact that Zimbabwe isn’t a signatory doesn’t preclude Zimbabweans from being indicted by the ICC.

Violet: What about the inclusive government - if internally the leaders are asking for amnesty, that doesn’t stop individuals from taking the matter to The Hague ?

Derek: Yes the amnesty is agreed by (inaudible) the government has no effect on the ICC’s determination to prosecute. The only way the ICC is going to be influenced by internal proceedings is if for example there’s an actual prosecutor of the perpetrator of crimes against humanity in Zimbabwe , then the ICC will say well it’s been dealt with locally, there’s no need to deal with it at an international level. But the ICC would look and see and make sure that the prosecution was genuine and properly pursued and any faux prosecution just to try and avoid the jurisdiction of the ICC would certainly not be acceptable by the ICC. And of course one also needs to remember that perpetrators of crimes against humanity, for example, South Africa is a signatory to the Rome Statute, if a person has committed a crime against humanity in Zimbabwe and travels through South Africa, the South African courts can use the principle of complementarity to prosecute that person who’s guilty of the crime against humanity in South Africa.

Violet: You know that Mr Tsvangirai has called for reconciliation, first of all, what does this mean and is this the avenue that Zimbabwe should follow?

Derek: Certainly there needs to be a national healing and reconciliation but one’s not going to have reconciliation without some form of justice and the Civics have anticipated this position arising. They had a Justice Symposium in South Africa in 2003 with some 70 NGOs and they all agreed that the impunity which has characterised the history of Zimbabwe and Rhodesia , needs to come to an end and perpetrators of crimes against humanity need to face some form of justice.

Certainly that is the sense one is getting from the general populace and the victims of these crimes against humanity. Yes they’re prepared to reconcile and work for national healing but there needs to be some form of justice - whether it is restorative justice or retributive justice - they will have to investigate these issues. But there must be some form of justice.

Then you’ve got a situation Violet, where 95% of the violence, the political violence has occurred, has been perpetrated by one party, you can’t then stand up and say let’s forgive and forget and draw a line under it. You can do that if the violence was equally balanced between the two sides but when it is so disproportionately perpetrated by Zanu-PF to try and say well let’s just draw a line under this, smacks of a cover-up and a continuation of the kind of impunity we’ve seen in the past.

Violet: That was my final question because it appears that the perpetrators are crafting this agenda for forgiveness and this talk for reconciliation but I don’t know what the process is like on the ground there in Zimbabwe and as a person who has been working for the Research and Advocacy Unit, you have dealt and even helped a lot of the victims. Is there a process where there’s consultation with the people on the ground regarding this matter? I know you talked about what happened in South Africa , but what about in Zimbabwe itself? Has there been a process where people have actually been asked?

Derek: Yes, well the emphasis and it’s repeated time and time again every time there’s a meeting of civics on this issue, is that it’s always emphasised that anything to do with transitional justice and national healing has to be people driven. So the first step in this process is to firstly make known to the victims of violence what their options are in regards to what’s called transitional justice - and whether it’s going to be a truth and reconciliation commission, whether it’s going to be prosecutions etc.

And once the people are able to make an informed decision in relation to what their options are, then one needs to canvass the victims of violence for their viewpoint. It’s not for the politicians or civil society or anything to dictate to the victims of violence as to how national healing should take place; it’s for the victims to suggest to the civics and to the politicians what they want to be done to achieve national healing.

The civics are trying to organise, to try and educate the victims on what the options are and then to get feedback from the victims as to how they want to proceed in the light of these options. But in an initial survey that we did, certainly it was done in August – the violence of the June 27th presidential election was still very fresh but the people who carried out the survey said they couldn’t say the word reconciliation, they got as far as the first syllable and there was a great outcry saying we are not interested in reconciliation, we are interested in justice. Whether that attitude has changed since August of last year I don’t know. These kinds of surveys would need to be carried out.

Comments and feedback can be emailed to violet@swradioafrica.com

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