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Inclusive government - Index of articles
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.
Veritas
makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
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