Another Battle Looms Over Zimbabwe Constitution
The latest disagreements between the two formations of the MDC and ZANU-PF over the draft constitution.
Gwinyayi
Dzinesa, Senior Researcher, Conflict Prevention and Risk Analysis Division, ISS Pretoria Office
Following ZANU-PF’s marathon politburo
meeting on Wednesday 8 August to audit the draft constitution, the party has
maintained that it cannot accept the document without the revision of several
clauses in order to include people’s views gathered during the outreach phase
of the constitution-making process. ZANU-PF spokesperson Rugare Gumbo announced
last week that the ‘party is expecting the amendments to be factored in by
Wednesday next week [15 August], when the politburo meets to finalize its position
on the draft constitution’. In what was seen as a major breakthrough in July,
the Constitution Select Committee of Parliament (COPAC) comprising the three
coalition ruling parties in Zimbabwe had finally agreed on a draft constitution
after nearly four years of acrimonious debate. Following the disputed 2008
elections, ZANU-PF and the two MDC formations had to enter the Global Political
Agreement (GPA) mediated by the Southern African Development Community
(SADC) to avoid plunging the country deeper into conflict over the electoral
results. The adoption of a new constitution before conducting elections again
is a key requirement of the power-sharing agreement.
There
remains concern that the constant need to bargain and compromise in order to
accommodate numerous divergent political party interests may have resulted in a
draft constitution that does not mirror popular views. The proposed
constitution provides for an overhaul of executive authority and the devolution
of power. Although an executive president will still rule the country, he/she
will be constrained by checks and balances. Any decisions made in relation to
key issues such as the declaration of war,state of public emergency and senior public appointments within state
institutions will not be taken unilaterally by the president but in
consultation with parliament. The president and parliament will have fixed
terms, with elections every five years. The draft also limits the terms of senior
public officials and the chiefs of the security services. It clarifies the
terms of succession in case of the sudden death, resignation or incapacitation
of the president by providing for the vice president
to assume the office of the president for the remainder of the term. This
raises the electoral stakes of selecting a vice-presidential running mate
perceived to be capable of assuming office upon the incumbent’s departure. Set
against the backdrop of the security sector’s partisan involvement in political
processes in order to influence the outcome of elections, the draft constitution requires the security services
to discharge their duties on neutral and non-partisan grounds. An Act of
Parliament should provide for an effective and independent mechanism for
receiving, investigating and remedying complaints from members of the public
about misconduct by Zimbabwean security personnel.
One
of the significant proposed changes is the devolution of governmental powers
and responsibilities to provincial and metropolitan councils and local
authorities in order to improve government efficiency and effectiveness while
enhancing people’s participation in governance. An Act of Parliament will
provide for the demarcation of the boundaries of the country’s ten provinces.
Provincial governors will chair the provincial councils, which will also
include parliamentarians whose constituencies fall within the provinces
concerned, chiefs, ten persons elected by a system of proportional
representation and extra staff. However, the new arrangement does not entail a
fully-fledged federal system.
The draft constitution provides the
Zimbabwe Electoral Commission with a broader
role in which the commission supervises the entire election process and environment
in which elections takes place. There will be equal representation of women in
all elected institutions and commissions. The draft charter provides for an
Independent National Prosecuting Authority, while the attorney general
currently handles both legal advice to the government and prosecutes on behalf
of the state. The document does not provide for compensation
for land compulsorily acquired for resettlement under the agrarian reforms of
2000, except for improvements effected on it before its acquisition.
Some of these provisions risk being
undercut by the resistance from ZANU-PF. According to media reports the party
stated its objections to certain clauses, including those that temper the
imperial presidency, such as parliament and not the presidency approving the
deployment of troops both inside and outside the country; the party with the
majority of parliamentary seats in a province appointing provincial governors,
previously the prerogative of the presidency; and the dilution of the authority
of traditional leaders, who have been strong supporters of ZANU-PF. This can be
viewed as ZANU-PF seeing some of the provisions as an assault on President Robert
Mugabe’s current authority rather than safeguarding the threats to long-term
democratic consolidation posed by the continued imperial presidency.
Both MDC formations have endorsed the
draft constitution and say they will not countenance its renegotiation. They
argue that COPAC, which included ZANU-PF members, has already endorsed the
document, which has been referred to by MDC-N leader Welshman Ncube as a
negotiated ‘compromise’ that was crafted under the ‘give-and-take’ framework of
the GPA. The compromise nature of the draft
constitution has, however, meant that the three political parties have
attempted to get as much as possible from the other parties, hence ZANU-PF’s scrutiny
of the document and calls for amendments. Indeed, according to The Herald newspaper Gumbo said that
ZANU-PF members ‘… overlooked some of the critical issues, which Politburo felt
needed to be re-emphasised to reflect the views of the people’. ZANU-PF has
previously threatened that President Mugabe can still call for elections due by
June next year under the current constitution that benefits his party if a
constitutional deadlock persists.
It remains to be seen how SADC will
react to the latest obstacle in the unpredictable path to Zimbabwe’s new
constitution. The regional body’s extraordinary summit
held in Luanda, Angola, in June 2012, had urged the Zimbabwean parties to the
GPA ‘to finalise the constitution-making process and subject it to a referendum
thereafter … assisted by the Facilitator [South African President Jacob Zuma],
to develop an implementation mechanism and to set out time frames for the full
implementation of the Roadmap to Elections’. Tellingly, soon after the Luanda
Summit the three parties delayed President Zuma’s planned visit to Harare to help
them to resolve sticking points in order to fully implement the GPA, including
finalising the constitution-making process, stating that they felt it would
only be sensible to invite President Zuma after the completion of the
constitution drafting process. The annual SADC Summit scheduled for 17 and 18
August in Maputo will most likely be held without the parties having agreed on the
draft constitution. Notwithstanding the grandstanding by the two MDCs and
ZANU-PF’s dissension, it is critical that SADC sticks to its guns that the parties
agree on a draft constitution, which is a key GPA deliverable.
If the three parties agree on the draft
constitution a second all-stakeholders conference needs to be held before the
draft is tabled in parliament for debate and validation. It will then be voted
on by referendum. Perhaps the parties, instead of their continued haggling,
should submit the draft through these processes to allow Zimbabweans to decide
whether the draft reflects their views.
