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Directive from GPA Principals - Constitution Watch
Veritas
April 28, 2012

COPAC Directed by GPA Principals to Deliver Second Draft of Constitution Next Week

Lead Drafters have Finished their Work on Second Draft

On Monday 23rd April the lead drafters ended their current drafting session. Working closely with COPAC Co-chairs Forum, they have gone as far as they can on the second draft. Unfortunately this is incomplete because COPAC has still not resolved contentious issues. On 25th April the COPAC co-chairs announced delivery of the second draft, still incomplete, to COPAC Management Committee.

Directive From GPA Principals

Minister of Information and Publicity, Webster Shamu made a statement on Wednesday that at the Cabinet meeting of Tuesday 24th April the three principals in the inclusive government, President Mugabe, Prime Minister Tsvangirai and Deputy Prime Minister Mutambara, had complained about the delay in concluding the constitution-making process and directed that the Management Committee of the Constitution Parliamentary Select Committee [COPAC] responsible for the process deliver the revised draft constitution to them next week. The Minister said Cabinet unanimously agreed with the principals. He also reported that the principals had expressed concern at the failure by both the Select Committee and the Management Committee to inform the principals about any challenges they may be facing in the constitution-making process and they had now directed the Minister of Constitutional and Parliamentary Affairs, Eric Matinenga, who chairs the Management Committee, to brief Cabinet regularly on its progress.

Minister Shamu’s statement also included a reminder that President Mugabe told the ZANU-PF Central Committee last month that if the Referendum on the new constitution was not held by May, he would announce a date for the new elections.

Problems Raised by this Directive

An argument has raged in the last three COPAC Management Committee meetings about whether they have an obligation to hand the draft over to the principals. Minister Priscilla Misihairabwi-Mushonga stated that the MDC position is that they do not have an obligation to hand it over to the three principals, but to their party presidents. This argument is fuelled by the fact that MDC negotiators on the Management Committee do not recognise Deputy Prime Minister Mutambara as their party president – although he is still occupying the role of GPA principal. The Management Committee will be having another meeting on Monday 30th April to try and resolve this argument and to settle the remaining contentious issues. Even if the dispute is resolved in favour of submitting the draft to the party principals, it is unlikely that the principals will get it in time for the next Cabinet meeting on Tuesday. There are still the parked issues.

Issues Still to be Resolved by Management Committee

The issues on which the COPAC Select Committee could not agree and which accordingly are still not provided for in the second draft, have been referred up the line to the Management Committee. They are:

• Devolution of power – this involves matters such as the structure of the provinces, how many provinces and provincial governors there should be, and how many people will sit in provincial parliaments. [Comment: Professor Welshman Ncube’s MDC formation has already said it will not sign a constitution unless the provisions on devolution are acceptable to it. ZANU-PF spokespersons on the other hand have stressed that they think devolution will threaten Zimbabwe as a unitary state. An acceptable compromise may be difficult to arrive at.]
• Executive structure – the question is the number of Vice-Presidents the constitution should allow [in the present constitution it is either one or two, but many countries manage with only one]. [The pressure for two is from ZANU-PF – presumably because the 1987 Unity Accord between ZANU-PF and ZAPU calls for two Vice-Presidents.] It is already agreed there will be no Prime Minister.
• Dual citizenship – although it has been agreed that Zimbabwean citizens by birth are entitled to dual citizenship, differences remain over the circumstances in which an individual will lose his or her Zimbabwean citizenship.

It remains to be seen whether the Management Committee and/or the principals/party presidents can resolve the remaining issues. Only once they have been resolved can final instructions be given to the lead drafters to incorporate the agreements into a final, complete, draft.

Will Management Committee be able to Resolve “Parked” Issues

It is doubtful that the Management Committee at their meeting on Monday will in one day be able to finish with issues that have remained unresolved all this time – unless they decide, like COPAC, to park these issues and leave them to the principals/party presidents to decide. There have been many conflicting views – between parties, between personalities both in the Select Committee and among the co-chairs, and in the Management Committee. In addition there now seem to be conflicts between the party negotiators and the rest of COPAC, with last week seeing a blame game being played between some of the negotiators and the COPAC co-chairs. The co-chairs said COPAC could not finish the draft until they had been told through the Management Committee how the remaining unresolved issues were to be handled. Two of the negotiators said members of the Management Committee could not meaningfully consult the principals on those issues without seeing the second draft as far as COPAC had been able to take it. This has been arranged, with the delivery of the draft now ready, i.e., with the parked issues, but it does not bode well for getting those parked issues solved.

Reminder – Members of COPAC Management Committee

The composition of the Management Committee is as follows:

Chairperson: Eric Matinenga, Minister of Constitutional and Parliamentary Affairs

Party negotiators: Patrick Chinamasa, Nicholas Goche, alternate, Emerson Mnangagwa [ZANU-PF], Tendai Biti, Elton Mangoma [MDC-T]; Priscilla Misihairabwi-Mushonga, Moses Mzila Ndlovu [MDC]

COPAC co-chairs: Munyaradzi Paul Mangwana [ZANU-PF], Douglas Mwonzora [MDC-T], Edward Mkhosi [MDC

Will The Principals/Party Presidents be able to Expedite the Process

If there is an impasse over the still unresolved issues and they go to the principals/party presidents, it still seems doubtful whether this will expedite producing a final draft constitution. Each principal/party president is likely to consider the draft separately and take advice from his own party before having a combined discussion. Advisors may have different ideas to COPAC or even the negotiators in the Management Committee. An example of this possibility is that there are reports that the President wants to have his own advisory team when he come to consider the draft. Considering who he is reported to have in mind, this process could delay a final draft constitution even further or in an extreme scenario put an end to any hope of getting a new constitution.

A Potential Stumbling-Block?

After the ZANU-PF Politburo and Central Committee meetings at the end of March a press report suggested that the party had set up a team to handle the constitution-making process, consisting of Ministers Chinamasa, Goche and Mnangagwa – the party’s GPA negotiators – and Jonathan Moyo, Jacob Mudenda, Tafataona Mahoso, Goodwills Masimirembwa and Alexander Kanengoni. Its task would apparently be advisory, to highlight disputed issues in the COPAC draft Apart from Jonathan Moyo and Tafataona Mahoso, all the team members are associated with the COPAC process either as members of the Management Committee [the three Ministers] or ZANU-PF representatives on the COPAC technical committee that has been assisting the drafting process. The presence of Professor Moyo and Mr Mahoso is interesting, because in recently published articles both have been outspoken opponents of the COPAC process and the contents of the COPAC draft. And Mr Mudenda and Mr Masimirembwa were co-authors of the scathing attack on the first four draft chapters of the new constitution printed in the Herald in December last year. Did this move, not publicly confirmed since, signal a possible ZANU-PF rejection of an eventual COPAC draft, notwithstanding ZANU-PF’s full participation in the process so far through its co-chair Munyaradzi Paul Mangwana and the other ZANU-PF parliamentarians who are the party’s representatives on the COPAC Select Committee? Hostile reactions in the State media [how do they always get the “leaked” draft before anyone else?] suggest that there is continuing strong opposition to its contents within ZANU-PF.

May Referendum Impossible

The President’s desire for a Referendum in May is obviously going to be impossible to satisfy. Even if a draft is agreed by all, the steps between agreed draft and Referendum – translations, time for people to study and evaluate it, the Second All-Stakeholders’ Conference, possible alterations, presenting it in Parliament, and its gazetting in its final form – will take months. Finance would have to be raised, the Zimbabwe Election Commission, which will conduct the Referendum, will need time to prepare, etc. It remains to be seen if the President’s threat to announce the date of the next election if there is no Referendum in May was merely to expedite the process – or if he really will do so.

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