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draft challenged by ZANU-PF - Constitution Watch
August 05, 2012
Draft Challenged by ZANU-PF
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
between the negotiators for over a month to accommodate new
demands by the parties, in particular those of ZANU-PF, finality
had been reached.
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
- the Select
Committee on Thursday 19th July
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.
Two Parties have Backed their Negotiators
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.
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."
has Raised Objections
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
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
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
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.
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
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.
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.
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".
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
to Negotiate New Demands with Management Committee
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.
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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