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of 'Hot Seat' interview with lawyer Derek Matyszak
Gonda, SW Radio Africa
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.
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”.
Matyszak: Hi 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
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
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
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
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
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
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?
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?
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
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
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
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.
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