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Constitution-making process moves slowly towards drafting stage: Constitution Watch 2011
Veritas
September 19, 2011

The Thematic Committees’ compilation of district and provincial reports has been completed. There were 60 district reports compiled, analysed and distilled from the reports from meetings held in 1857 wards by the outreach teams. These 60 district reports, together with the written submissions sent or handed in direct to COPAC and all website submissions including the completed questionnaires made available for the Diaspora, were then collated into 10 provincial reports.

Before drafting can commence the provincial reports have to be consolidated and distilled into a national report. But, work on this has not yet started because COPAC felt it was necessary for the consolidation of the outcomes of the outreach process into the district and provincial reports to be thoroughly checked for errors and omissions, to ensure these reports had correctly captured what the people said [see below for details of this audit].

This new constitution-making has been a stop-start process. Although the earlier stages of the process, up to the First All-Stakeholders’ Conference, followed the GPA timetable, after that the timing went haywire. The outreach was scheduled to start by the end of July 2009, but did not do so until late June 2010. It was supposed to take no more than four months, but was not in fact complete until 15th March 2011. This meant the Thematic Committee stage started a year and a half late and its progress too has been a stop-start one. The many delays were due to poor logistics, lack of proper planning, running out of funding, political party disputes, accusations of tampering with data, the harassment and arrest of the MDC-T COPAC co-chairperson, etc – and, sheer carelessness, an example of which was that when it was announced that the data for the Thematic Committees to work on had been “uploaded and collated” it was discovered by Hon Mwonzora when he was released from jail that the Diaspora submissions had been omitted.

Nevertheless the committees could have started work at the beginning of April. Disagreements about the methodology to be used stalled the start, and the committees only eventually assembled for a training workshop on 3rd and 4th May and started work on the ward reports on 5th May. Time was lost again when work was interrupted while further inter-party disagreements about methodology were resolved. Work then proceeded until 9th June when the ward reports were completed. Another lengthy delay ensued while funding was organised for the remainder of the Thematic Committee programme. The committees reconvened from 1st to 16th August and completed consolidating their ward reports into first district and then provincial reports. Now these have to be checked before proceeding to the next stage the National Report.

Audit of District and Provincial Reports

The audit of the district and provincial reports is still in progress. It has taken far longer than planned, but is expected to conclude this week. A report on the audit will be presented to the Select Committee. The audit has been carried out at COPAC headquarters by a team consisting of:

• 12 representatives of the three main political parties [4 nominated by each party]
• 9 quality control experts [3 nominated by each party]
• COPAC staff from the COPAC data collection department.

Next Step: Writing of a National Report

After acceptance of the audit report, the Select Committee will decide when the writing of the national report will begin. The national report is the document that will guide the drafters as they prepare the draft Constitution.

The group responsible for preparing the national report will consist of:

• 23 Thematic Group team leaders [see below]
• 23 researchers/technical experts [from the same group of people who advised the Thematic Committees – selected for their experience in research and in writing reports]
• 15 data analysts [5 nominated by each of the political parties]
• 8 representatives from the smaller political parties
• 2 representatives of the Chiefs.

The venue for this exercise is likely to be a Harare hotel – COPAC headquarters cannot cater for such a large number of persons.

Timeframe for writing national report

COPAC’s estimate is that the national report can be compiled in five days.

Pre-drafting scrutiny of national report by political parties?

Although COPAC has not officially committed itself on this point, it is widely assumed that the national report will be subjected to scrutiny by the three main political parties before it is sent to the drafters.

17 Thematic Committees now 23 Thematic Groups

Three of the original 17 Thematic Committees were subdivided in June to speed up work on the district and provincial reports. The three Committees concerned had particularly large themes. Subdivisions were as follows:

• Citizenship and Bill of Rights – into two groups, Citizenship and Bill of Rights
• Lands, Resources and Empowerment – into three groups, Lands, Natural Resources, Empowerment
• Elections, Transitional Mechanisms and Independent Commissions – into three groups, Elections, Transitional Mechanisms and Independent Commissions

This resulted in there being 23 thematic groups altogether, which explains the inclusion of 23 team leaders and 23 researchers/technical experts in the group responsible for writing the National Report.

Commencement of Drafting?

The budget for the drafting stage was approved on 4th August by the Project Board, which comprises the COPAC Management Committee and representatives of the donors. Although COPAC said in August that drafting would commence “soon”, at the present rate of progress drafting is unlikely to start before October. The last COPAC press release estimated that the drafting would take “about 35 days”.

Is 35 days a realistic estimate?

This is doubtful. For one thing, COPAC’s estimates for previous stages of the constitution-making process have usually turned out to be over-optimistic. Moreover, the drafting committee has a mammoth task. For instance, the outreach talking points only covered about ten per cent of the content typically required in for a constitution. Presumably the other 90% will be left to the drafting committee. As this committee will have representatives/nominees from all political parties [see below] there are likely to be lengthy discussions before decisions are made for the technical/lead drafters to follow. In addition, in a previous statement it was suggested by COPAC that the drafting committee would be expected to look at all SADC constitutions, and many other constitutions from around the world, for useful ideas.

COPAC has also stated that the draft Constitution will be made available in English, in vernacular languages and in Braille.

The Drafting Committee

Lead drafters

COPAC has officially announced the names of the three lead drafters:

Justice Moses Chinhengo – judge of the High Court of Botswana and former judge of the High Court of Zimbabwe

Priscilla Madzonga – senior legal practitioner in private practice in Harare, former legal drafter in the Attorney-General’s Office

Brian Crozier – former Director of Legal Drafting in the Attorney-General’s Office.

All three of the lead drafters were members of the drafting committee that prepared the draft constitution produced by the Chidyausiku Commission in 1999. This draft was rejected in the Referendum of February 2000, but the rejection had nothing to do with the quality of the drafting.

Other members of drafting committee

The drafting committee will include the three COPAC co-chairpersons. The other fifteen members of the committee will be announced later; they will be persons with relevant experience. Each of the three GPA political parties will nominate five members of the committee.

Monitoring of the Drafting Stage

There has been no indication that that civil society would be allowed to monitor the drafting stage. ZZZICOMP [ZESN/ZPP/ZLHR Independent Constitution Monitoring Project] has protested this omission, stressing the importance of greater transparency and the need for the outreach reports to be made available and civil society to be allowed to monitor the drafting stage and other subsequent events leading to the Referendum. COPAC’s response is awaited. [Note: ZZZICOMP eventually, after a struggle, got COPAC to agree to letting its observers in to monitor the Thematic Committee stage – the compiling of the reports. As yet there has been no ZZZICOMP report on this stage has been made available to the rest of civil society.]

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