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New time frame for constitution-making process - Constitution Watch
Veritas
February 29, 2012

Draft Constitution still being reviewed

A week ago a COPAC co-chair said that COPAC had completed reviewing six of the eighteen chapters of the draft constitution. That left twelve chapters still to be reviewed.

There are also still decisions to be finalised on how to handle issues not dealt with in the draft [the incomplete clauses or portions of the draft marked “parked”]. Two of the issues that have been previously mentioned as reverting from the expert drafters to COPAC for a decision have according to COPAC co-chairperson Mr Mwonzora now been agreed:- clarification on presidential terms and that an independent prosecuting authority will be set up [see headings below]. This would leave as still to be decided:- structure of top executive arm of government [an executive president deputised by one or two vice-presidents, or a president and prime minister]; what form devolution will take; death penalty; mono- or dual citizenship. In addition the schedule on transitional provisions is still incomplete and deciding on some of its contents may prove contentious.

The principals were promised a revised draft for their meeting on Monday 27th February. As the revised draft was not ready, they have called for it to be ready in two weeks time. [Comment: As COPAC was given the first 4 chapters to review and revise in mid-December and they had the next 14 on 23rd January – this means the first few chapters have taken COPAC two and a half months. It will remain to be seen if the rest of it can be revised in two weeks.]

Veritas Revised Time Frame

Veritas December 2011 prediction

In Constitution Watch of 9th December 2011 Veritas ventured a prediction that the post-drafting stages of the constitution-making process might follow this timetable:

• the Second All-Stakeholders Conference at the beginning of April
• the Referendum at the beginning of September
• the Bill for a new Constitution being presented to Parliament in November.

Veritas revised prediction

The assumption underlying our December prediction was that, allowing generous time, the final draft would be ready by 1st March. As this has not been realised, the dates suggested in December need to be pushed back, based on a new assumption: that COPAC will need at least another two months – March and April – to reach agreement on a final draft, and another month – May – to get the final draft translated into all the vernacular languages and widely distributed ahead of the Second All-Stakeholders Conference. On that assumption Veritas’ revised forecast is as follows:

• the Second All-Stakeholders Conference not before the beginning of June
• the Referendum not before the beginning of November
• the Bill for a new Constitution being presented to Parliament in January 2013.

Presidential Terms – Draft Revised

MDC-T’s COPAC co-chair Mr Mwonzora said last week that the draft’s clause on Presidential term-limits had had been misinterpreted and had never been intended to affect President Mugabe’s eligibility to stand again for election as President under the new Constitution. As a result of its review, however, COPAC had decided to add the words “under this constitution” in the clause with the 10 year/two-term limitation. That should have been the last mention of the issue. Yet commentators continued to raise objections to the alleged exclusion of President Mugabe. [Note: In Constitution Watch of 20th February Veritas, having said a new law should not be applied retrospectively, suggested that clarification of the clause was necessary to avoid the possibility of future argument.] It is of note, however, that the Kariba draft, which also has a two-term limit, would have explicitly excluded terms served under the previous constitution.

Prosecutor-General and Attorney-General

Mr Mwonzora has been quoted in the media as saying: “We have agreed in COPAC that, the AG should remain as a government legal advisor because the office has been used mostly to prosecute those people opposed to the President and government of the time. We had some people prosecuted while some don’t get prosecuted after committing the same crime ... This is going to stop under a new constitution; we are going to have an independent body led by a prosecutor-general, who will be appointed by Parliament.” It remains to be seen whether this is in fact the COPAC position endorsed by all three parties.

Audit Planned for COPAC’s use of Government Funding

At the Justice, Legal, Constitutional and Parliamentary Affairs Parliamentary Portfolio Committee [PPC] meeting on Monday this week, the Acting Permanent Secretary for the Ministry of Constitutional and Parliamentary Affairs, Mrs Mabhiza, gave oral evidence in which she assured the committee that there will be an audit of COPAC’s use of money provided by the State. This was in response to questions whether COPAC had become a cash cow for some MPs who are in the Select Committee. [They have been accused in the media of blowing almost US$100 000 a week in accommodation, travel and sitting allowances for its members.] A member of the committee queried if the legislators were delaying completion of the new constitution because they wanted to make more money. Mr Gift Marunda, COPAC national coordinator, was also at the PPC and assured the PPC that the Select Committee was not deliberately delaying the completion of the Constitution. He said the process was politically driven, making bickering and delays inevitable.

[Comment: For transparency an audit of the much larger amount of money provided by donors should accompany the government audit to safeguard against double-dipping, and the reports on these audits should be available to the public.]

Planning for the Second All Stakeholders Conference and Referendum

Acting Permanent Secretary for the Ministry of Constitutional and Parliamentary Affairs, Mrs Mabhiza, answering questions at the Parliamentary Portfolio committee meeting [see above], said preparations for the Second All Stakeholders Conference had already started. She said the number of delegates had been downsized to 2500 from the 4000 who had attended the First All Stakeholders Conference.

[Comment: It is to be hoped that these preparations include adequate precautions to prevent interference with Conference proceedings. Former Law Society President Beatrice Mtetwa sounded an appropriate warning on this score in January. Referring to interference earlier that month with the drafting process, she said: “If urgent measures are not taken to address such behaviour, the Second All-Stakeholders’ Conference will collapse just like the first one.”

Mrs Mabhiza also said preparations for the referendum will also be starting soon, with Government pushing for a “Yes” vote. [It is to be hoped that these preparations will include revision or replacement of the Referendums Act – this was being considered in Cabinet in June last year and it was on the Presidents Legislative Agenda for this session of Parliament, but there has been no news of it to date. If there is nothing done about a new or revised Referendums Act the constitutional referendum will have to be held under the old Act. But we have a new Electoral Commission which will have to conduct the Referendum and the amended Electoral Act is still to lay down new parameters for the new commission. The Electoral Amendment Bill has so far not even got to its first reading in Parliament, despite being gazetted on the 27th June 2011.]

What the President had to Say on the Constitution in his Birthday Interview

COPAC constitution-making process not proving a success “So one wonders why we abandoned, in the first place, the process that we had agreed on, that this was going to be based on the Kariba Draft, which was all ready, all agreed and enunciating, you know, the process, which could have been completed in a short period. But we listened to our counterparties that it was better to listen to the people first.”

Acknowledgment that more time needed Although the principals had asked for and been given the draft, “it’s just a raw draft directly from the drafters. All we can do is just look at and perhaps see what the drafters have put together and give time to our management committee to look at it and present a reviewed version of it.” He said once they had the reviewed version of the draft, they would then decide on “the roadmap” and people should “expect a referendum to get the people’s views, whether the people accept the draft constitution or not. If they reject it then we revert to the old constitution, if they accept then the usual process takes place. Parliament must also endorse it and then it becomes a legal document after it has been passed by Parliament and we can go for an election.”

Elections in 2012 with or without new constitution “Yes, sure; this year! We just must have elections. They just must take place with or without a new constitution …If others don’t want to have an election then they are free not to participate. Nobody is forced to go to an election but definitely I will exercise my presidential powers in accordance with the main principal law, the Constitution of our country and announce when the election will take place.”

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