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Update on inclusive government disputed issues - Bill Watch 32/2010
Veritas
August 30, 2010

Stalemate on Outstanding Issues

It is now 13 days since the SADC summit ended on 17th August and there has been no movement on the three outstanding issues which the Summit recommended should be settled within one month. On the 20th August at ZANU-PF’s Central Committee meeting President Mugabe categorically stated that he will make no further “concessions”, and will not implement the agreed formula for sharing provincial governorships, until sanctions have been lifted. [“Concessions” seems a misnomer when what is really at issue is action by President Mugabe to comply with the GPA or resolve disputes mostly based on his unilateral actions violating the terms and spirit of the GPA].

It is not within the power of the other two parties to lift the sanctions and measures imposed in the exercise of their sovereignty by the governments of foreign states who are answerable to their own taxpayers and have made it plain that sanctions will remain until they see democratic reforms implemented in Zimbabwe. So, as MDC-T and MDC-M have already called for sanctions and measures to be dropped and joined with ZANU-PF in re-engaging the international community, it is difficult to see what more they can reasonably be expected to do. By making action that is well within his power depend on something the other parties cannot deliver – the lifting of sanctions – the President prolongs the stalemate on the remaining outstanding issues to the frustration of most Zimbabweans.

The 3 Outstanding Issues

The Summit stated these have to be settled in month:

• Governor of Reserve Bank: The MDC-T objects to the renewal of his contract made unilaterally in breach of the Memorandum of Understanding signed by the parties and the spirit of the GPA. As amendments to the Reserve Bank Act have since ruled out the Bank’s former quasi-fiscal role, modified the Governor’s powers and resulted in a new Board, there may be room for compromise on this issue.
• The Attorney-General’s appointment remains a very important issue, as one of the reasons foreign governments do not remove the limited sanctions is their perception that under the incumbent Attorney-General prosecutions are politically biased – a perception shared by many Zimbabweans. It is unlikely that this perception will be affected by the pending Attorney-General’s Office Bill [not yet available] aimed at taking the Attorney-General’s Office out of the public service. [This shows how important it is that the new Constitution should ensure that anyone appointed as Attorney-General is independent of party politics. An alternative would be to end the situation in which the Attorney-General doubles as chief prosecutor and chief Government legal adviser with a seat in the Cabinet and provide instead for a separate Director of Public Prosecutions who must be independent of party politics.]
• Swearing-in of Roy Bennett. The excuse for the continued refusal to swear in Mr Bennett as Deputy Minister of Agriculture, notwithstanding his acquittal, appears to be the State’s attempt to keep the criminal case alive by appealing against the acquittal. The refusal is inconsistent with the presumption of innocence. [However, by sticking to principle instead of nominating a replacement for Mr Bennett, even on a temporary basis, MDC-T has forfeited the benefits that might have flowed from having a Deputy Minister able to monitor the administration of the Ministry of Agriculture by the ZANU-PF Minister. It is part of the GPA checks and balances that most Ministers are shadowed by a Deputy Minister from one of the other GPA political parties.]

Provincial Governors

On 18th August MDC-T Secretary-General Tendai Biti said at a press conference that MDC-T expected early appointment of new provincial governors in accordance with the formula already agreed. The two-year terms of office of the governors appointed in August 2008 having expired, it remains to be seen whether they will now be “unilaterally” reappointed to continue in office for the time being. According to the GPA [Article 20.1.3(p)] the President should appoint governors “in consultation” with the Prime Minister – and this means that the Prime Minister has to agree. [By virtue of section 115(1) of the Constitution, “in consultation with” in the GPA means that the President must secure the agreement of the person consulted – but this clause of the GPA has been frequently ignored.]

Issues Agreed on by Principals and in the Implementation Matrix

Cabinet on 24th August approved the implementation matrix agreed to by the three party principals, referred to in the Zuma report and endorsed by the SADC Summit. The complete matrix, showing the 24 agreed issues, agreed action, implementation mechanisms and time frame, will be sent out in the next Bill Watch. Some of the most important issues are:

• Re-gazetting of Constitution Amendment 19: process to be started immediately [see details below]
• Amendments to Electoral Act: legislation to he completed immediately
• Land Audit Commission: Commission to be appointed within a month to carry out the land audit [GPA, article 5]
• Land Tenure Systems: systems emphasising lease-hold and security of tenure with collateral value to be worked out with a month
• National Economic Council: establishment to be expedited within a month
• Media Issues: New Zimbabwe Broadcasting Corporation board to be appointed, Broadcasting Authority board to be regularised, and Media Trust to be constituted, all within a month [but nothing about AIPPA - see below]
• Action on Human Rights and Corruption Commissions: regularisation of Human Rights Commission [by inclusion of one more woman member as required by Constitution] and appointment of Anti-Corruption Commission to be expedited, within a month

Important Issues Omitted from the Agreed Implementation Matrix

These issues were neither listed in the Zuma report as resolved by the principals nor as outstanding issues, nor are they included in the implementation matrix:

• National Security Council and JOC: While the NSC has met more regularly this year after not having the statutory monthly meetings in 2009, there are still the problems of: the continued separate existence of the notorious Joint Operations Command [JOC] which it was believed the NSC would replace; whether the security forces are really answering to one party or to the inclusive government; the militarisation of so many state institutions; and, the reported setting up of militia bases.
• Delay in legislative reform: GPA Article 17 envisages as a priority new legislative measures to entrench democratic values and practices. AIPPA and POSA remain unamended.
• Unilateral decisions by the President: e.g. appointment of judges, ambassadors and governors, etc, when the GPA stipulates that the Prime Minister’s agreement is required.
• Escalating violence: The recent resurgence of violence and intimidation associated with the constitution-making process and early preparations for the next elections do not merit a mention.

19th Amendment to Constitution

President Zuma’s report to the SADC Summit recorded that the three party principals had agreed that “the Minister of Justice should start processes immediately to get Constitution Amendment 19 “as approved by Parliament” to be gazetted and signed”. Constitution Amendment 19, gazetted as Act 1/2009, was much shorter than the Bill approved by Parliament. [See Bill Watch 6/2009 of 24th February 2009.] This agreement does not envisage Parliament being reconvened and asked to reconsider Amendment 19 – it merely means that the full text of the Amendment will be gazetted to replace the abridged version gazetted as Act 1/2009. The material to be restored by re-gazetting Amendment 19 consists of the omitted Schedules 9, 10 and 11 and related provisions:

• Schedule 9, containing GPA Article 14, as a “guide” for the conduct of traditional leaders and referring to the need for them to be non-partisan
• Schedule 10, containing GPA Article 6, as a “guide” for the constitution-making process, including the timetable which the Parliamentary Select Committee on the new constitution has failed to follow
• Schedule 11, the text of the whole GPA, “for the information of the public”.

Comment

Impact if Constitution Amendment 19 is Re-Gazetted: While setting the record straight is commendable, the gazetting now of the unabridged Constitution Amendment 19, i.e. with the missing provisions included, is unlikely to have any practical legal impact, in the sense of creating actionable legal rights or obligations, because:

• Schedule 11 is for information only.
• Schedules 9 and 10 are merely “guides” – not the right word to describe legally binding obligations enforceable by ordinary citizens. And not one of the three schedules is stated to have legal effect.

The important Schedule 8 was in Constitution Amendment 19 as gazetted in February 2009. It sets out Article 20 of the GPA [framework for the inclusive government] and states that Article 20 modifies the Constitution for the duration of the Inclusive Government.

Concern has been expressed that the constitution-making process may be invalidated by gazetting the Schedule setting out its time-frame because the suggested dates are already out by 10 months, thus invalidating the constitution-making process for having missed its deadlines. But as this schedule is merely a “guide” this is not so – although if it had been included in Amendment 19 last year the time limits for each stage of the constitution-making process might have been treated with more respect.

Is the Status of the Originally Gazetted Amendment 19 Questionable?

There is another question. If – as is implicit in the principals’ agreement to re-gazette – Amendment 19 as gazetted last year did not contain the whole of the Bill “as approved by Parliament”, it will be possible to argue that it has been null and void all along – because the Constitution provides that it is the Bill approved by Parliament that must be gazetted as an Act. If it has been null and void all along, this would mean that Schedule 8 [Article 20 of the GPA] has not been a valid part of the Constitution and consequently that the Constitution does not at the moment provide for an Inclusive Government, or for a Prime Minister and Deputy Prime Ministers, or for special additional Parliamentary seats for them and for four MDC-T and six MDC-M nominees.

The counter-argument would be that in reality all the substantive parts of the Bill approved by Parliament were gazetted and that the missing provisions are not significant. Given the serious consequences for the nation of nullifying the originally gazetted Amendment 19, experienced constitutional lawyers Veritas has consulted are of the opinion that counter-argument would be likely to prevail if the matter ever came to court.

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