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  • New Constitution-making process - Index of articles

  • House approves COPAC report; recap on last lap of drafting process - Constitution Watch 4/2013
    February 07, 2013

    House of Assembly Passes Motion on Constitution

    The House of Assembly yesterday passed the motion adopting the COPAC Report on the constitution-making process and noting the draft constitution.

    This came at the end of a sitting lasting more than four hours during which the motion was supported by speakers from all parties and there were no dissenting voices.

    The Senate adjourned before completing its separate debate on an identical motion. It is expected to approve the motion this afternoon.

    This will clear the way for COPAC to embark on its planned publicity drive to acquaint the country with the contents of the draft constitution ahead of the Referendum.

    Recap on Last Lap of the Drafting Process

    Constitution Watch 2/2013 of 3rd February circulated the final draft constitution that was tabled in Parliament this week and Constitution Watch 3/2013 circulated the Narrative Report on the constitution-making process presented to Parliament at the same time.

    The rest of this bulletin covers the eventful month leading up to the drafters’ delivery of the final draft, taking the story from the point reached in our last Constitution Watch of 2012 on 21st December 2012 - two weeks after the inaugural meeting on 5th December of the special committee appointed by the GPA party principals to make further efforts to overcome the deadlock reached in November by the Management Committee.

    Special Principals’ Committee

    Delays in getting to work

    As of 21st December the chances of the special Principals’ Committee reaching early agreement on the inter-party sticking-points over the COPAC draft seemed somewhat dim. The Committee had had only two working meetings, on 11th and 13th December - despite the urgency imposed by the fact that the ZANU-PF Conference in Gweru resolved on 8th December that if process was not completed by Christmas the President should go ahead and call elections under the present Constitution without waiting any longer, and despite pressure from the SADC Extraordinary Summit meeting in Dar es Salaam on 8th December. Official ministerial and party commitments of members had made assembling a quorum difficult.

    By end of year still an impasse

    Committee chairperson, Constitutional and Parliamentary Affairs Minister Eric Matinenga said on 30th December that the Committee had met again for another working meeting, but had managed to reach agreement on only some of the issues in dispute. It would meet again in January, he hoped within two weeks.

    Committee members would meanwhile, he said, be communicating with their parties and the party leaders notwithstanding holiday season absences from Harare. Nevertheless, the general public despaired of early progress, as President Mugabe had left for the Far East on 27th December on his customary annual holiday, with no indication that it would be shorter than its usual three or four weeks.

    Renewed Pressure

    Early in the New Year came the following developments:

    • The COPAC co-chairs revealed that they had met separately on four occasions over the holiday period and had provisionally managed to iron out the inter-party differences on devolution of power, national prosecuting authority, peace and reconciliation commission and land committee, leaving only the issue of Presidential running mates unresolved. Their report would be considered by the full Principals’ Committee soon.
    • President Mugabe arrived back in Zimbabwe on 10th January.
    • On the same day, 10th January, in Dar es Salaam an Extraordinary Summit of the Troika of the SADC Organ on Politics, Defence and Security Cooperation, urged “the political stakeholders in Zimbabwe to expedite the finalization of the constitution making process on the outstanding issues in order to pave the way for peaceful, credible, free, and fair elections in the country”. The Summit had been called mainly to consider the situations in Eastern DRC and Madagascar, but it also received an update on developments in Zimbabwe from President Zuma.

    Principals Committee fails to break deadlock - 16th January

    The full Principals’ Committee met on Tuesday 15th and Wednesday 16th January, knowing that it was due to the report back to the principals on Thursday 17th. Public expectations were high, in the belief that only the issue of Presidential running-mates remained unresolved. But the meetings ended in failure on Wednesday evening, with the different sides blaming each other for the breakdown - ZANU-PF claiming the MDCs had walked out, the MDCs saying ZANU-PF’s Patrick Chinamasa had resurrected issues previously settled.

    This meant . . .

    That at the meeting with the Principals on 18th January would be faced with three alternatives: to drop the idea of a new constitution completely; to postpone completion of the constitution-making process until after the elections, which would therefore have to be held under the present Constitution; or to make one last attempt to hammer out an agreement, using the proposals from the COPAC co-chairs as a basis.

    Breakthrough: 17th January

    17th January Principals Meet Committee at State House

    Against the unpromising background of that morning’s press stories about the Committee’s failure to agree the previous evening, the Committee’s meeting with the GPA principals at State House on Thursday 17th January began at 11.30 am. The meeting ended three and a half hours later, and was shortly thereafter followed by a brief press conference, held by President Robert Mugabe, Prime Minister Morgan Tsvangirai, Deputy Prime Minister Arthur Mutambara and MDC-M leader Welshman Ncube, at which agreement on the draft constitution was announced. All expressed satisfaction at the outcome.

    Attendance at meeting

    The meeting was attended by:

    • President Mugabe
    • Prime Minister Tsvangirai
    • Deputy Prime Minister Mutambara
    • Professor Ncube

    Plus all the members of the Principals’ Committee:

    • Minister of Constitutional and Parliamentary Affairs Eric Matinenga, chairman of the Committee
    • Minister of Justice and Legal Affairs Patrick Chinamasa, ZANU-PF
    • Minister of Finance Tendai Biti, MDC-T
    • Minister of Regional and International Cooperation Priscilla Misihairabwi-Mushonga, MDC
    • COPAC co-chair Munyaradzi Paul Mangwana
    • COPAC co-chair Douglas Mwonzora
    • COPAC co-chair Edward Mkhosi.

    The Contentious Issues

    The main contentious issues covered by the agreement on 17th January were:

    [Note: “retained” means that provisions of the COPAC draft of 17th July 2012 were substantially left unchanged.]

    • National Prosecuting Authority separate from the Attorney General’s Office and headed by a Prosecutor-General independent of the Attorney General [retained – but the Attorney General in office immediately before the new Constitution finally comes into effect will automatically become Prosecutor-General. So Mr Tomana could be the first Prosecutor-General, but would hold office for 6 years only, not for the unlimited term of office currently applicable to him as Attorney General.]
    • Devolution [retained – but with inclusion of a preamble in the relevant chapter underlining that Zimbabwe remains a unitary state and with appointed provincial governors/resident ministers replaced by provincial chairpersons elected by provincial councils.]
    • Land [retained]
    • National Peace and Reconciliation Commission [retained – but to be a constitutional institution for ten years only. Its continuation thereafter as a statutory institution would require an Act of Parliament]
    • executive authority [largely retained, but the President loses the power to dissolve Parliament prematurely whenever he pleases]
    • Presidential running mates [retained – but not operational for the first ten years, i.e., not applicable to the coming election, nor to any Presidential election in the next ten years, during which a casual Presidential vacancy would be filled by a nominee of the departed President’s party]

    Lead Drafters Recalled to Produce Final Draft

    The three lead drafters were promptly recalled to produce a final draft.

    Friday 18th January - The drafters met the Principals Committee, and were given signed instructions to bring the COPAC draft constitution of July 2012 into line with the agreement that had been reached.

    Friday 25th January - The drafters handed over their final draft to the Principals’ Committee on Friday 25th January, and it was approved [this is the draft that was attached to Constitution Watch 1/2012 of 27th January]. Following a precautionary follow-up checking exercise, the drafters produced a revised version of the final draft for COPAC on 31st January [this is the draft that was attached to Constitution Watch 2/2012 of 3rd February]. This revised draft, which makes no substantial changes to the first version of 25th January, was approved by the full Select Committee for presentation to Parliament together with the Select Committee’s report on the constitution-making process.

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