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Stages still to complete - Constitution Watch
Veritas
December 10, 2011

Warning about New Constitution at the ZANU-PF Conference

The ZANU-PF Central Committee’s report tabled by President Mugabe at the party’s conference in Bulawayo on 8th December includes the following passage: “Zanu PF reserves the right to dissociate itself from a draft constitution which seeks to undermine the cardinal goals of our national liberation struggle and our national culture and values.” It was known from the beginning that the three parties would vie to have their constitutional proposals enshrined in the new constitution, and during the outreach process, according to the civil society outreach monitoring report, “ZANU-PF appeared to be more dominant” [attributed to coaching, bussing in, intimidation] “and even dictated the content of most proposals. The likelihood of producing a constitutional draft that primarily reflects ZANU-PF proposals ... remain high, if not certain.” It is very disappointing, however, to have one of the party principals enunciate his views quite so explicitly in a statement that could be interpreted as a warning to those involved in completing the draft constitution to reflect ZANU-PF constitutional proposals if they want to see a new constitution accepted.

Nevertheless, COPAC, having come this far, has little option but to continue with the next stages regardless of this announcement.

Stages Still to Complete

Drafting: At a briefing on Monday 5th December COPAC announced that the three lead [expert] drafters had started work that morning and that “the much awaited drafting process will take at least 35 days from date of commencement.” [Electronic version of full text of press release available.] What COPAC did not make clear is that the 35 days exclude weekends and that the drafters will break for the Christmas recess between 22nd December and 3rd January, so that the 35 days will end on 1st February – but they may take more than 35 days. Once the expert drafters finish their draft it is likely to be debated extensively by the three GPA party negotiators and there would likely have to be a formal go-ahead given by the three party principals. How long this would take is an unknown, a matter for guesswork.

Second All Stakeholders Conference:

Once the draft is acceptable to the three parties it has to be presented to the Second All Stakeholders Conference. COPAC’s press statement of 5th December contains the following assurance: “Once the draft is in place, it will be publicized extensively before the Second All Stakeholders’ Conference to give Zimbabweans an opportunity to familiarize with its contents before they vote in the referendum. COPAC undertakes to make the draft available in local languages and Braille.” The GPA does not give any specific indication about how long people should be given to study the draft before meeting to discuss it at the Stakeholders Conference – all it states is that “the draft Constitution shall be tabled within three months of completion of the public consultation process to a second All Stakeholders Conference.” And this deadline is long gone.

If the Second All Stakeholders Conference wants to make changes, presumably these would have to go back to the drafters for formal drafting and then to the GPA parties for their agreement before being incorporated into the final draft to go to Parliament. [Note: The GPA is silent on what happens if the Stakeholders at the Conference want to make changes. But presumably if it was not the intention to afford Stakeholders the opportunity to do so at this stage, the GPA would not have included provision for such a creature as the Second All Stakeholders Conference.]

Parliament:

The GPA says that the draft constitution must be tabled in Parliament within one month after the Second All Stakeholders Conference. This may not in fact take place within one month if there are arguments arising from proposals at the Conference and the necessity for considerable redrafting. The purpose of this stage is for Parliament to debate the draft and COPAC’s report – this is because technically COPAC is a Select Committee of Parliament that must report back to Parliament – not for Parliament to give the draft the force of law. The GPA is silent on whether the draft can be altered by Parliament. COPAC co-chairpersons have in the past given assurances that it would be morally wrong to alter what “the people” have said – but there is really nothing to stop this happening [see below].

Referendum:

The GPA provides for the gazetting of the draft constitution before a Referendum, which is probably to ensure the existence of an officially recognised text. The GPA also states that a Referendum must take place within 3 months of the conclusion of the debate in Parliament. A considerable length of time was envisaged to ensure that there was enough time for wide circulation of the draft constitution and for people to study it [COPAC have said it will also be translated into vernacular languages and Braille].

If the Referendum vote is YES the next stage will be:

Gazetting of Bill and Presentation in Parliament: A Bill for the enactment of the new constitution must be gazetted within one month of the Referendum result and, after a further period of not less than 30 days, presented in Parliament. [Note: It should not take as much as a month to publish the Bill in the Government Gazette. But the 30-day wait after gazetting cannot be avoided, because section 52(2)of the present Constitution requires the gazetting of the Bill at least 30 days before it is presented in Parliament, and this must be respected.]

Getting the Bill Passed by Parliament: The GPA does not dictate what happens once the Bill for the new constitution is presented to Parliament. COPAC co-chairs have suggested that it would be unthinkable for Parliament to tamper with or refuse to pass what the three GPA parties have agreed at the end of so long a process once the people have approved it in a Referendum. In theory, however, Parliament could either make amendments or refuse to pass the Bill. If one of the two larger parties were to decide to oppose the Bill, it could derail the new constitution at the very end of the line by voting against it – which would prevent the Bill receiving the two-thirds majority a constitutional Bill needs.

Presidential Signature: After being approved by Parliament the Bill will need the President’s assent before it can be gazetted into law as an Act. The present Constitution gives the President 21 days in which to assent or not to a Bill presented to him for assent. In practice a Bill is regarded as being presented to the President, not when it is delivered to the President’s Office by Parliament, but only when it is actually handed to the President himself. [This is difficult to track, so in the past there have been long delays between the date Parliament has finished with a Bill and when the President makes his decision.] Again there is nothing in the GPA requiring the President to give his assent.

Gazetting of the new Constitution as an Act: The present Constitution states that an Act of Parliament assented to by the President only becomes law when it is gazetted. The gazetting of an Act of Parliament after the President has assented to the Bill for the Act is essential under our Constitution. Under present arrangements the gazetting of Acts is the responsibility of the President’s Office. And in the past there have often been long delays between Presidential assent and gazetting.

Will the Next Stages be Fast-tracked?

If all the remaining stages are to be completed properly, there is little chance of having a new constitution in place before the end of 2012. The million dollar question is whether there will be an election before it is in place or whether, having dragged out the first stages of the constitution-making process for two and a half years when they should have taken nine months at most [see Constitution Watch of 30th November 2011], a decision will be made to fast-track the next stages. Without fast-tracking, and assuming completion of drafting by 1st February, and acceptance of the draft by COPAC and the principals by 1st March, adherence to the remainder of the timeframe stipulated in the GPA timetable would see the Bill for the new Constitution being introduced into Parliament in November 2012. The stages would be as follows:

• 1st April – Second All-Stakeholders Conference
• 1st June – conclusion of Parliamentary debate on draft constitution
• 1st September – holding of Referendum
• 1st October – gazetting of Bill
• 1st November – introduction of Bill into Parliament.

After being introduced into Parliament the Bill would have to be:

• passed by both the House of Assembly and the Senate, in each case by a two-thirds majority of the total membership
• assented to by the President
• gazetted as law in the form of an Act of Parliament.

This means that, unless drastic fast-tracking is resorted to, any election to be held after the new constitution is in place cannot possibly be held until well into 2013. Allowance must be made for the fact there will almost certainly be a need to amend the Electoral Act to bring it into line with the new constitution and that the political parties have already agreed, in the current Electoral Amendment Bill, that there must be a period of between six and nine weeks between nomination day and polling day in any future elections.

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