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Final draft challenged by ZANU-PF - Constitution Watch
Veritas
August 05, 2012

"Final" Draft Challenged by ZANU-PF

Subsequent to agreement being reached and the Final Consolidated Draft being completed at 5 a.m. on Wednesday 18th July by the Management Committee, which includes the COPAC co-chairs and the GPA party negotiators, the draft was distributed on 19th July. It was distributed on the understanding that, as the negotiators had the power to represent their party positions, and as the previous draft had already been scrutinised by the GPA parties and there had been tough bargaining between the negotiators for over a month to accommodate new demands by the parties, in particular those of ZANU-PF, finality had been reached.

The Management Committee did not envisage further debate and believed this was the document that would go forward to the Second All Stakeholders' Conference. As such it was presented for information, but not for altering, to:

• the Select Committee on Thursday 19th July
• Parliamentarians on Thursday 26th July, when COPAC distributed copies of the draft to MPs and Senators at a special meeting held at Parliament.

But in spite of it being agreed as the final draft for the Second All Stakeholders' Conference, problems have arisen.

Only Two Parties have Backed their Negotiators

MDC-T

On 30th July MDC-T said in a statement that its National Executive was "satisfied that the draft Constitution essentially captures the views of the people of Zimbabwe and represents an incremental gain in the democratisation process" and had resolved to support the draft; it would recommend the same to the MDC-T National Council. At its meeting on 3rd August the National Council resolved to accept the draft "despite the fact that some aspects which the MDC would have wanted included in the draft could not be incorporated" and recommended a "Yes" vote at the Referendum.

MDC

MDC Secretary-General Priscilla Misihairabwi-Mushonga said her party endorsed the draft "because it was a process born out of negotiation. We negotiated every full stop and every comma in the draft. So, we are very happy with the final outcome."

ZANU-PF has Raised Objections

The party's Politburo held an extraordinary meeting on Friday 27th July to examine the draft. The meeting lasting until after 2 a.m. Interviewed after the meeting, ZANU-PF negotiator and Management Committee member Patrick Chinamasa said the Politburo had gone through the draft line by line and accepted about 97% of it. He said the procedure for the appointment of provincial governors and a section on the composition of provincial councils were the notable objections while other matters were "technical".

The list of issues with which the Politburo was reported to be unhappy suggests that rather more than 3% is contested; and they are certainly not just "technical" nor minor issues, like altering a shade of meaning or giving clarity to a clause, but involve substantial alterations to principles, not just on governors and provincial councils but on separation of powers - increasing the President's powers at the expense of Legislature and Judiciary, control of defence forces, etc.

No official statement from ZANU-PF was issued, but a lengthy report in the 29th July Sunday Mail [which is virtually the party's mouthpiece], headlined "Draft constitution: The drama begins", lists the areas of disagreement and new demands

ZANU-PF Politburo Objections

• National objectives and foundations - the ZANU-PF Politburo want these two chapters rewritten so that they are "permeated" with liberation values, i.e. to place more "weight" on the role of the country's struggle against colonialism and imperialism; and "to recognise the liberation struggle as the cornerstone of the modern Zimbabwean nation". They also want to include wording that endorses economically empowering indigenous Zimbabweans.
• Devolution/provincialisation Provincial councils do not feature in the present Constitution and provincial governors are mentioned only to make them ex officio Senators. Provincial governors are appointed by the President, and provincial councils are constituted and allocated certain planning and co-ordinating functions, under the Provincial Councils and Administration Act. The councils consist of representatives of urban and rural district councils and chiefs in the province concerned and are chaired by the provincial governor. The draft constitution changes the method of appointment of provincial governors and the constitution of provincial councils, and provides for greater powers to be devolved to the councils.

The Politburo objections centre on:

• The small increase in devolution/provincialisation added by the draft - for the reason that "it brings disharmony in a unitary state," and "allows centrifugal forces to be in ascendancy as opposed to centripetal forces. The Politburo is of the strong mind that the status quo should be maintained."
• Method of appointment of provincial governors - the procedure in the new draft allows a party with the highest number of Parliamentary seats in a given province to nominate two candidates, one of whom will be appointed provincial governor by the President. The Politburo want the present procedures to be maintained, i.e. direct appointment by the President to emphasise what the Politburo considers to be their function - to be the personal representative in a province of the President and not of political parties.
• Direct representation on provincial councils The draft brings an element of direct representation to these councils by providing that after elections all MPs and Senators from a province will sit on its provincial council. Also there will be provision for 10 additional members for each province. The exact modality of how these seats will "elected" will be worked out in the Electoral Act. The framework given in the draft is that the seats will be allocated proportionately between parties winning seats in National Assembly in that province, and the parties must nominate from a party list alternating a woman and a man [starting with a woman].

The Politburo rejected all these proposed changes and considered that the status quo should remain on the basis of the need for harmony between the functions of local authorities and national plans and objectives.

• A Constitutional Court - the draft proposes the establishment of a special court to deal with constitutional matters. The Politburo want this provision scrapped, saying the existing arrangement serves the country better, i.e. the Supreme Court constitutes itself into a constitutional court comprising five judges when dealing with constitutional cases.
• Deployment of defence forces outside the country needing Parliamentary approval - the present Constitution does not require the President to obtain Parliamentary approval for the deployment of the Defence Forces, whether within or outside Zimbabwe. The draft states that a deployment of the Defence Forces outside Zimbabwe must be rescinded unless approved within seven sitting days at a joint sitting of the Senate and the National Assembly. The Politburo rejected this provision "because in defence matters, you do not do stupid things like that"; it considered that a refusal to approve a deployment already implemented would jeopardise the security of the troops concerned.
• The Office of Public Protector [known as Ombudsman until 2007] - this institution, which has existed since Independence, is responsible for dealing with complaints of maladministration by public officials but has never been very effective. The draft proposed it should be abolished and its functions taken over by the new Zimbabwe Human Rights Commission. The Politburo resolved that the office should remain in place as it performs unique functions.
• A National Peace and Reconciliation Commission - this is a new constitutional commission provided for in the draft. The Politburo's view was that there was no basis or justification for the creation of additional commissions.
• Restructuring of the Attorney-General's Office and Creation of a Prosecutor General - At the moment the Attoryney-General is responsible for criminal prosecutions. The draft splits the Office of the Attorney-General in two, one office being that of a Prosecutor-General who would be responsible for carrying out criminal prosecutions. The Prosecutor-General would be totally separate from and independent of the Attorney-General. The Attorney-General would remain the principal legal adviser of the Government and its representative in civil litigation. The Politburo wants the status quo maintained because it has "served the country well".
• President to nominate election running mates who would become the Vice-Presidents - at the moment the President, once voted into power, appoints two Vice-Presidents [one of whom, to accommodate the 1987 ZANU-ZAPU Unity Accord, must be from Matabeleland]. The draft says that the President and the two Vice-Presidents must be elected "jointly" by the voters, so each presidential candidate's nomination papers must include two vice-presidential candidates as his or her running mates, one nominated as first Vice-President, the other as Second Vice-President. Voters must choose between the competing three-person packages. There were objections to this in the Politburo, but because of the dissension round the question [it would bring the ZANU-PF succession issue to a head] there was no statement of the Politburo's final position.
• Chiefs - Unlike the first draft the present draft makes no provision for the Council of Chiefs to nominate a member of the Judicial Service Commission. The Politburo wants the first draft's provision to be restored because customary law courts are part of the judiciary and an extension of their jurisdiction to land matters is being considered. .

ZANU-PF to Negotiate New Demands with Management Committee

ZANU-PF Constitution Management Committee member Minister Chinamasa said that once the Politburo had reached a final decision on exactly what changes they require to meet their objections, the suggested "amendments would be collated into a comprehensive document and these would be tabled before the management committee". Party spokesperson Rugare Gumbo has expressed confidence that the other two parties will renegotiate. "We are going to engage our colleagues in the management committee over the party position. Our expectation is they will accept these proposals to improve the draft. The Politburo and Zanu-PF are committed to seeing this process through. A lot of resources have been expended; we cannot afford to see the process come to naught."

BUT The Politburo met again on Wednesday 1st August and did not reach consensus as there were still areas of contention. They are planning to meet again next Wednesday 8th August.

MEANTIME the other two parties have made statements that the draft was a product of hard negotiation by negotiators who had a mandate from their parties, and they are adamant that it is not for renegotiation and they are not prepared to make further concessions to ZANU-PF.

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