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politburo continues to stall constitution - Constitution Watch
August 16, 2012
Politburo Continues to Stall Constitution
still not come out with a final and definitive statement of its
position on the COPAC draft
constitution. The Politburo has already held four meetings to review
the draft – on 25th, 27th July, 1st and 8th August –
some lasting into the early hours of the next morning, which reportedly
indicated considerable internal disagreement. What has, however,
become clear from statements by their lead negotiator, Patrick Chinamasa,
and the ZANU-PF spokesperson, Rugare Gumbo, is that the Politburo
has decided the party wants substantial "improvements" to the draft.
Mr Gumbo has
said the Politburo may make an official statement on the party position
after yet another Politburo meeting scheduled for after Heroes and
Defence Forces Days. Although politburo meetings are usually on
a Wednesday, because of the long weekend, Cabinet will be meeting
on the Wednesday and there will probably be a Politburo meeting
on Thursday 16th August.
party's legal team was tasked to prepare a new draft for the Politburo
incorporating the changes that have already been decided on. This
may be accepted at the next meeting, or the Politburo may continue
to demand more changes and yet another new
draft will have to be prepared before final acceptance. Only
when the ZANU-PF new draft is made public will it be possible to
know precisely to what extent the Politburo's new draft has departed
from the COPAC draft accepted and initialed by the party negotiators.
Mr Gumbo said
that ZANU-PF's negotiators had been "insensitive"
to the party's position and had compromised too much. Although
Mr Chinamasa declined to respond to that assessment, he is now adamant
that the "final" draft agreed by the Management Committee
was still open to change. In other words ZANU-PF wants the other
parties to compromise further to meet its demands. Moreover, Mr
Gumbo said ZANU-PF was not going to budge on this position –
"The constitutional draft is not final and we will not go
to a referendum without amendments. If they want, they can go alone.
We want to hammer a draft that is acceptable to all and not just
to two parties."
But the two
MDCs insist that they have already compromised far more than they
wanted to on key issues, and are adamant that they cannot give away
more without grossly violating what their parties stand for.
It remains to
be seen whether President Zuma's visit and the forthcoming
SADC Summit will influence this new impasse and if pressure is applied
who will succumb to it – ZANU-PF or the MDCs.
MDCs Committed to COPAC Draft as a Negotiated Compromise
"After extensive deliberations, the National Council resolved
to accept the [COPAC] Constitutional draft. This is despite the
fact that some aspects which the MDC would have wanted included
in the Draft could not be incorporated. It recommended Zimbabweans
to vote ‘YES' for the constitution in the referendum."
When it became
known that ZANU-PF was going to demand further changes, MDC-T spokesperson
Douglas Mwonzora said ZANU- PF will not have its way with the draft
constitution this time around. "The draft constitution that
we have is not a product of the MDC alone but a result
of two key processes that ZANU-PF participated in - the
outreach process and the negotiation. In both instances, ZANU-PF
was equally and ably represented by people with a requisite mandate.
We cannot possibly re-subject the draft to further negotiation.
As far as we are concerned, it is decision time for Zimbabweans
including those that support ZANU-PF on whether what we have is
a good or bad draft."
Party leader Welshman Ncube said that, while the draft constitution
was not perfect and did not contain many issues Zimbabweans would
have wanted included, it had been negotiated and his party had accepted
it as a "compromise". He cautioned that "It is not possible to renegotiate
or alter anything without collapsing the whole process. We as a
party will not accept any attempt by anybody to renegotiate any
aspect of this draft. We will not accept any forum for some people
to veto or alter the agreed document." Party spokesman Qubani Moyo
said the draft was "a fair compromise" and should be put to the
people at the Referendum to allow them to decide.
When the Politburo
demands became known Prof. Ncube said his party will not play into
the ZANU-PF political games. He said his party was done with negotiating
the draft constitution. "If they (ZANU-PF) think their rejection
will draw the MDC back to negotiation, then they are misleading
themselves, we will not go back there. If they are not happy, they
can produce their own draft that will be taken to the people together
with the COPAC draft. The people will choose, as they know what
they said. They will vote for a draft that is reflective of their
of Constitutional and Parliamentary Affairs:
Matinenga [speaking in his capacity as Minister and not as a party
member] has commended the draft and advocated its adoption, saying
"the draft will democratise our institutions, thereby promoting
good governance and accountability".
Will there be
further negotiations? ZANU-PF wants them but both MDC formations
have already said they will adamantly oppose any change to the COPAC
draft. Even were the MDCs to back down and negotiations reopen,
would the negotiators in the Management Committee reach consensus?
It took weeks of hard bargaining to reach consensus following the
ZANU-PF demands after the first draft. How long would another round
of negotiations take?
Will the impasse
be referred straight to the principals? Would the principals be
more likely to reach agreement? And would such agreement be acceptable
to their parties? Would Prof Mutambara, who still occupies the role
of a principal, be acceptable to the MDC negotiators?
be more than one draft put to a Referendum? There was a suggestion
that ZANU-PF put their draft to the Referendum as well as the COPAC
draft. But if that route is followed, the two MDCs may want to redraft
the COPAC draft to put back what they gave away under pressure from
the ZANU-PF. Putting two or more drafts to the referendum would
be difficult and in any case only a temporary solution unless there
was a binding commitment from all parties to respect the outcome
of the referendum. In the absence of such a binding agreement a
showdown between opposing parties might simply be postponed as the
constitution would still have to go through Parliament [see below].
Finally, having alternative drafts put to the referendum would give
rise to fear that what negotiations could not agree on would inevitably
increase the danger of inter-party conflict degenerating into violence
during the referendum campaign.
Can Go it Alone
approved in the Referendum the draft constitution must be gazetted
as a Bill which will need a two-thirds majority in both the House
of Assembly and the Senate to pass through Parliament.
This is a legal requirement for a new constitution or constitutional
amendments. The MDCs do not have this majority and it is unlikely
they will garner enough support from ZANU-PF backbenchers to go
against their party directives. Even were the MDCs to somehow put
together the required majorities and get the Bill passed by both
Houses, it would then need the President's signature before
being gazetted and coming in to force. Which would mean that even
if outvoted in Parliament ZANU-PF could still, through the President's
veto, block the new constitution at the last moment.
This was known right from the start of the process. There was lobbying
for Constitution Amendment
No. 19 to include the GPA
provisions on the constitution-making process and its time-frame,
with an added provision that a YES vote at the referendum would
be automatically legally binding. In the absence of this, it was
suggested that a Constitution Act should be passed at the outset
of the process guaranteeing that the outcome of a YES vote would
be adopted. COPAC's reply was that the goodwill of the parties,
and a moral imperative for Parliament and the President to accept
the outcome of a referendum, were enough. [Contrast the smooth passage
of the Kenyan constitution – the Kenyans first passed an Act
providing for the whole process and they included a provision stating
that if there was a YES vote at the referendum, the constitution
would automatically come into force 14 days later.]
Plan for Second All Stakeholder Conference on Ice
time-consuming audit of the final draft has effectively stopped
COPAC's progress towards the Second All Stakeholders'
Conference, which will in turn delay plans for the Referendum.
exercise not started – COPAC promised translation of the draft
into all vernacular languages. Translators already hired were expected
to start work on Monday 30th July, but this did not go ahead, and
the translation exercise is on hold.
meetings cancelled Several Management Committee meetings scheduled
to discuss arrangements for the Second All Stakeholders' Conference
had to postponed and then cancelled.
quarterly meeting indefinitely postponed The Project Board brings
together COPAC, the Ministry of Constitutional and Parliamentary
Affairs and the development partners [donors] who have so generously
borne a substantial portion of the cost of the constitution-making
process and from whom further financial assistance will be required.
The Board's regular quarterly meeting scheduled for 2nd August
was postponed for a week, to 9th August, and then indefinitely postponed
until the way forward becomes clearer.
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