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Constitution Select Committee - Work Plan – Constitution Watch 3/2009
Veritas
June 15, 2009

Parliamentary Select Committee on the Constitution – Work Plan

The Select Committee on the Constitution has outlined its work plan for producing a draft new Constitution by the middle of March 2010, following the mandate given to it by the Inter-party Political Agreement [IPA], Article 6. [Note: this part of the IPA has not been incorporated into the Constitution, so there is no legal back-up to the process – it is an agreement between three political parties.] To help achieve this task the Select Committee has appointed four administrative sub-committees, all chaired by members of Parliament:

• Budget Committee
• Management Committee
• Media Committee – [advertisements have already been flighted in the press for PR firms to tender to Parliament to provide media and publicity services for this committee]
• Committee to Organise First All-Stakeholders Conference

There will be other, “thematic”, sub-committees that will work on the content of the new Constitution. They will be appointed after the First All Stakeholders Conference [see below]. The Select Committee will be appointing a spokesperson, but in the meantime this role is being carried out by the 3 co-chairpersons: Paul Mangwana [ZANU-PF], Douglas Mwonzora [MDC-T] and David Coltart [MDC-M] or his alternate Edward Mkhosi. [Note: there was talk that this co-chairing arrangement would be temporary, while the principals decided whether there could be a non-Parliamentary chairperson. There has been no news on this question – it looks as if the answer is negative by default.]

Phases of Work Plan

1. Preparing for First All Stakeholders Conference
2. Country-Wide Consultations following First All Stakeholders Conference
3. Drafting of Constitution and submission to Second All-Stakeholders Conference
4. Legitimisation – debate of draft and Select Committee Report by Parliament; gazetting of draft; Referendum; [if Referendum vote “Yes”] gazetting of Bill; passage through Parliament; signature by President.

Phase 1. Preparing for First All StakeholdersConference

Identification of delegates for Stakeholders Conference

To identify the delegates to attend the Conference, the Select Committee will hold consultative meetings at provincial level, on 24th and 27th June. The Select Committee will divide into teams, backed by Parliamentary staff, which will hold a meeting in each province. The Select Committee has said that invitations to the meetings will go to groups such as traditional leaders, local councillors, churches, farmers, etc. [Comment: who gets these preliminary invitations is very important, as this will largely determine who gets to be a delegate. It would be important for civil society to submit lists of who they feel should be invited in each Province.] There will also be advertisements in the media inviting stakeholders to attend the meetings, so that any organisation or individual who has not been invited in advance can also attend. The Select Committee has said: “All Stakeholders are invited and encouraged to attend the consultative meetings as these are critical and pivotal in shaping the entire process of constitution making. The Select Committee looks forward to engaging with all Zimbabweans in the crafting of a new Constitution.”

There will be a formal registration process: recording attendees’ ID numbers, organisational details, including number in organisation and who they represent, and in the case of individuals, information about their qualifications and skills. The final selection of delegates to the Conference will be done when data from all provinces is in and when the number of delegates that can be handled has been finalised [the number will depend on funding – see below]. Organisations and individuals selected as delegates will then be notified.

Comment: There are several concerns about this process – (1) the final selection is still in the hands of Parliamentarians – it would be more transparent if they would invite civil society monitors to oversee this process; (2) it has been reported that these provincial meetings have been delayed to enable MPs to mobilise their party supporters to attend them and “people in their constituencies to their views”– whether or not this report is true, there is a fear that it could happen; (3) a large number of youth have in recent years had difficulty in obtaining ID’s; (4) about 25% of our population are in the “Diaspora” and there is no real provision for their representation; (5) a large number of farm workers with citizenship rights were disenfranchised in 2000 because they were of Malawi or other origin and although they were later entitled to reregister as citizens, because of continual displacement, many have not been able to get ID cards; (6) women find it more difficult to attend these meetings than men do because of all their other responsibilities and therefore they may be under-represented.

Agenda of Provincial Consultative Meetings

According to a statement by the Select Committee these meetings are meant “to provide stakeholders at grassroots level with an opportunity to input into the agenda of and selection of delegates to the First All Stakeholders Conference.”

Dates and Venues for the 10 Provinces

Wednesday 24th June at 10 am

Harare – Rainbow Towers; Mashonaland East – Mbuya Nehanda Hall, Marondera; Mashonaland Central – Bindura [venue to be announced]; Manicaland – Queen’s Hall, Mutare; Mashonaland West – Chinhoyi Hall

Saturday 27th June at 10 am

Matabeleland North – Lupane [venue to be announced]; Midlands – Gweru Theatre; Masvingo – Civic Centre; Bulawayo – Large City Hall; Matabeleland South – Gwanda Hotel

The Select Committee said it “has secured the resources to successfully carry out the provincial consultations”, but would “welcome any additional support as it has a mammoth task ahead”.

The First All-Stakeholders Conference

Tentative Dates: 9th – 12th July 2009 [the IPA time frame says it must be held before 13th July, three months after the setting-up of the Select Committee.]

The Agenda: The purpose outlined in Article 6(1)(a)(iii)] of the IPA is to consult stakeholders on:

• stakeholder representation in the subcommittees. [The Select Committee has decided that these will be thematic committee and is thinking in terms of 10 to 12 subcommittees, each with 30-40 members drawn from both inside and outside Parliament. The tentative themes have not been announced, as these will be finalised at the all stakeholders conference.]
• “such related matters as may assist” the Select Committee in its work. [The Select Committee has said it will be seeking assistance in planning the next stage – the public consultation process.

[Suggestion: Civil Society could ask that the agenda includes drawing up and adopting principles outlining what should be in a Constitution, a procedure followed in South Africa before the drawing up of the final Constitution in 1996.]

Number of Delegates: The Select Committee proposes a conference attended by 5000 delegates, 500 from each of the country's ten provinces. [This number will be dependent on funding.]

Chairperson: The chairperson is likely to be a suitable person from outside Parliament. [The Select Committee are debating who to appoint – it is to be hoped that they will consult civic society in a transparent manner and not impose a decision.]

Venue: In Harare at a venue still to be decided.

Phase 2. Public Consultation Process

After the First All-Stakeholders Conference, Article 6 allows 4 months for the completion of a public consultation process. The Select Committee envisages taking up 3 of those 4 months in consultations at constituency and ward level throughout the country. There are 210 constituencies and 1958 wards, and it is intended that an “outreach team” would spend 30 days in each constituency and hold 3 meetings in each ward. These teams would be appointed by the Select Committee in consultation with stakeholders and would consist of members of Parliament and members of the public. Details of how teams will be selected and how they will operate have still to be worked out. Presumably the teams would need some training and perhaps use questionnaires. [The process of selecting these teams and training them is very important – answers will depend on the calibre of the teams, the questions asked and how they are asked.]

The information collected by the outreach teams will come in to the Select Committee in the form of “raw data”. This will be sorted into relevant categories according to the thematic teams that are set up. [It is unlikely that Parliament will have the capacity to do this exercise, and civil society could offer expert technical help. It is important too that the records or the raw data coming in from wards is kept and made publicly accessible]. As the raw data from the wards is collated into themes, each thematic committee will debate the data and work on it to produce their contribution to a report – this is estimated to take a month. Each thematic committee will keep a copy of their report as a record, one copy will go to the Select Committee and another copy to the legal drafting team. [We have requested that these reports should also be make public.]

The public consultation process should end by mid-November this year.

Phase 3. Drafting

After the conclusion of the public consultation process, the IPA allows three months for the preparation of the draft Constitution [Article 6.1(c)(iii)]. The legal drafting team will be appointed by the Select Committee. [Comment: It would be against the spirit of the new Constitution process for members of the drafting team to be drawn solely from the Attorney-General’s Office. Some of our most expert legal drafters are not in Government service, so it is hoped that they will be drawn in.]

The draft Constitution must be tabled to the Second All-Stakeholders Conference before the expiry of the three months period. It is very puzzling that the IPA does not state the role of this Second Conference. The Select Committee sees this Conference’s task as being to check the draft Constitution against the data resulting from the public consultation process and to correct errors in the draft, but not to introduce new content.

Phase 4. Legitimisation

1. Tabling of Select Committee’s Report and Draft Constitution in Parliament

Within one month of the Second All Stakeholders Conference, the draft Constitution must be tabled in Parliament together with a report from the Select Committee on whether they feel they have carried out the mandate as given to them in the IPA. The draft Constitution and the Select Committee report will be debated. Presumably MPs and Senators will be free to express their views on the draft Constitution, but the draft Constitution cannot be changed – because Article 6.1(b) states that it is “the draft Constitution recommended by the Select Committee” that must be submitted to a Referendum [see below]. The debate must be concluded within one month.

2. Gazetting of draft Constitution

The draft Constitution emerging from Parliament must be gazetted “before the holding of a Referendum:” [Article 6.1(c)(vii)]

3. Referendum

The Referendum must be held within three months of the conclusion of the debate in Parliament.

4. Passage through Parliament

If the Referendum results in a “Yes” vote, the draft Constitution must be tabled in Parliament not later than three months after the Referendum [Article 6.1(c)(ix) and (x)]. [This delay seems extraordinary – the IPA time-frame allows a month for printing and gazetting the Bill, even though, because the draft will have been typeset for the referendum, this could be done in a few days.] Then there has to be 30 days between the gazetting of the Constitutional Bill and its tabling in Parliament [Constitution, section 52]. Then the IPA allows a further month before the Bill has to be tabled. [It is astonishing that an administrative process that could be accomplished in just over a month is allowed 3 months – exactly the same period allowed for consulting the whole country about what they want in the Constitution.] Once the Bill for the new Constitution is tabled in Parliament for debate the IPA timeframe comes to an abrupt halt. Parliament can take as long as it likes over passing the Bill. [Perhaps the Stakeholders Conference should try to get Parliament to commit themselves to a time-frame. Also, there is nothing to prevent Parliament from amending the Bill. Legally, the power of Parliament to make changes to the Bill remains unaffected by Article 6 – because the Article was not included in Constitution Amendment No. 19. But it would in breach of the intention of the IPA for the parties to countenance any change to the draft approved in the Referendum. This issue should be clarified at the First All Stakeholders Conference.]

4. President’s assent and gazetting of new Constitution as law

The final stage will be the submission of the Bill approved by Parliament for signature by the President and its subsequent gazetting as law. In theory the President would be free to withhold his assent. [The IPA committed the President to signing Constitution Amendment No. 19, but not the new Constitution.]

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