HOT SEAT (prt2): Journalist Violet Gonda brings you part two of the constitution debate with Constitution Minister Advocate Eric Matinenga and NCA leader Dr Lovemore Madhuku. The NCA leader claims government planning to delay the constitutional making process to postpone the elections to 2013, plus discuLovemore Madhuku: Thats a very mistaken view. We are trying to build a democracy and one of the conditions of a democracy is diversity of views, citizens have the freedom to hold different opinions, so I dont understand what is meant by losing an opportunity. I think that we are not just making this statement from the air, there is a substantial body of Zimbabweans out there who believe in what the NCA say and that viewpoint and that approach has to be respected.
Were clear that the NCA is not advocating for a no constitution. The NCA wants a new constitution but which is genuinely emanating from the people. So what will happen is that if this process unfolds and if the Minister is right that Zimbabweans will participate and that their views will be accommodated and that then we will get a perfect constitution coming out of that process, then Zimbabwe has a new constitution coming out of a process that the Minister has in mind. But the NCA believe is that is not what is going to happen and there will be a distorted document produced by the three political parties and we believe that Zimbabweans will reject it.
So there is no question of any opportunity being lost here. We will have a new constitution but it will be made after the rejection of this one. That is how we see things, how we see the future, so we are not missing an opportunity. I think that those who say we will lose an opportunity just see a one-way traffic, a new constitution coming out of this process which is suitable for Zimbabweans; we dont believe you will ever get a suitable constitution which comes from politicians.
Gonda: Let me go to Minister Matinenga, if there is no consensus, how will you hope to survive from a process that takes you away from your traditional allies like the NCA, the Zimbabwe Congress of Trade Unions and the Zimbabwe National Students Union?
Eric Matinenga: You know Violet, lets accept first things first; the majority of people in the MDC, in fact in both MDC formations cut their political teeth as members of the NCA, as members of the ZTCU and as members of these other organisations. So these people never want to sever ties with their allies and that is the point weve been making all along – that we want to go into this together and we have been sticking to our allies. And I can tell you that there have been quite a number of our allies, our friends, who have actually placed adverts in the papers indicating that yes, they may not be happy about one or two things in this process but this process offers the only opportunity to change the course of this country. Im sure that as we talk more and more, the majority of our allies will appreciate what we are trying to achieve, will appreciate that this is an opportunity which we cant lose and exploit for the betterment of this country.
Gonda: And also Minister, how inclusive is your constitutional making process in terms of reaching out to the Diaspora?
Matinenga: Violet we, both the Select Committee is I believe in the process of setting up a web site but I can definitely tell you that as ministry we are in the process of setting a web site, I think it will be ready in about a week or two weeks so that there is this correspondence with the Diaspora. Im also in the process of seeking to arrange meetings with our Diaspora population in South Africa. Youll appreciate that we are unable to visit each and every person out there but we accept that our South African neighbour has the biggest population and we are going to be engaging them as we go along.
Gonda: Can you tell our listeners a bit about the Kariba Draft and whether or not it is relevant to the current exercise?
Matinenga: Let me take you back Violet to the question you asked about the NCA draft which was done I think in 2000 or so. The position is very simple, I have stated this position, one of the co-chairs of this Select Committee has stated the position the Kariba Draft is just at the same level as our present constitution, the 1979 Lancaster constitution, its at the same level as the NCA draft – exactly the same level as the 1979/2000 draft. Obviously it is going to be looked at, it is not going to be the determining factor, it is not even the beginning, in fact if I quote the words of Paul Mangwana, one of the co-chairs, he clearly put the icing on the cake and said look the Kariba Draft is not an exercise of the people, we are going to start afresh. That is the Senate committee speaking. So the Kariba Draft is going to be considered just like any other draft, if it is placed before the Senate committee by any stakeholder who so wants to place it before the Select committee or before any sub-committee which is dealing with that particular issue.
Gonda: Dr Madhuku, your thoughts on this Kariba Draft and correct me if Im wrong, but your organisation has rejected the Kariba Draft Constitution, is that correct?
Madhuku: Very correct. I think that when the Minister makes those statements that he is making, we dont believe that is what will happen what he is saying. What we believe will happen is that at the end of the process, youll get that Kariba Draft being the draft that will be used. It doesnt matter what they say in the Select Committee, what the Minister says etc, they will always say these things. If they didnt want a Kariba Draft, if they wanted to start afresh as he is saying then they should not have insisted on a process that they are controlling. The whole point of controlling that process is obviously to control the process. I do not understand it – if the politicians are very genuine that they want a new constitution which will be a product of what Zimbabweans really want then I dont see why they should say there should be a committee of parliament.
So he may say what he is saying but the Minister is not the main player in this game, the main players in this game are the President of the country and maybe the Prime Minister – and my suspicion which is borne by political events on the ground is that the President will ultimately prevail in this matter, the way he has prevailed over the matter of Gono. He spoke (about Gono) just a few days ago, very clearly and in the way we are used to for 28 years and to say that the political matrix has changed I think obviously is to very simplify it.
But anyway we are debating these things, there will be that Stakeholders conference which the Minister is talking about in about one and a half months from now and I think from that stage we will begin to see whether these positions by the politicians would be realised. I think that theres too much debating on this issue, sooner or later we will see the reality on the ground. But our position is that we dont trust those politicians and thats why we dont want them to lead it. So we dont trust their statements.
Gonda: Minister Matinenga, do you have anything to say on this?
Matinenga: Violet I can understand the suspicion by people of this country but I think the important point made by Dr Madhuku is that lets wait and see what happens at the First Stakeholders Conference. I think it is at that Conference which is really going to disabuse a lot of people about a lot of misconceptions. And I can say that from what I have seen as to what is happening, people realise that this is a genuine process which is going to take all Zimbabweans on board.
Gonda: Right and also discussing a bit about some of the issues that we may find in this new constitution, what about the separation of powers between the executive, the legislature and the judiciary? How prominent a feature is this question?
Matinenga: Well Violet we are talking about process now you are on issues of content. I think in every constitutional making process when you are looking at content, there are basic issues which stick out like a sore thumb which must be addressed but one does not want to pre-empt these issues but safe to say, that in general discussion with people those are issues which always come to the forefront and I am sure that those will be adequately addressed at content level.
Gonda: So right now you are not ready to discuss it on content level?
Matinenga: No of course not. I dont want to give the impression that I am dictating the form of a constitution which must take place. Its really not my domain and I tend to disagree with Dr Madhuku when he says that this is really going to be an issue between, in the main, Mr Tsvangirai and Mr Mugabe. This is an issue which is going to engage the generality of the people of Zimbabwe and basically people know what they want. Theyve gone through this process in 1999/2000 and they are revisiting those very same issues and Im sure that they will include in that document those very pertinent and common and internationally accepted standards which must be contained in every constitution.
Gonda: You are the Minister of Constitutional Affairs but can you explain to our listeners what your role is in this because we have on the one hand the Parliamentary Committee that is going to report to the Speaker of Parliament, so where do you come in?
Matinenga: Yes, yes. I think this is an issue which has caused a bit of misrepresentation particularly in the Zimbabwean press, some quarters of the Zimbabwean press. The relationship between my Ministry and Select Committee is the similar relationship between Ministry and its permanent secretary. The Select Committee is implementing the process and the Ministry as representative of government is responsible for policy direction and in terms of good international practice we have said that the Select Committee must not be interfered with, it must be left to carry out the process. But as government we have got the responsibility to see that in implementing that Article 6 process, that Select Committee is properly funded and government is not going to shy away from its obligations in that regard. That is what happens in the region and that is what happens internationally. It is the responsibility of government to fund and direct policy but to leave that Select Committee independent in its implementation of Article 6.
The only difference is that in implementing that policy and in following good regional and international practice, Ministry representing government is not going to be seen and is not going to be interfering with that process. That Select Committee should do what it has to do, it should come to the First Stakeholders Conference, and those sub-committees should do what they have to do without interference. This is why I said I disagree with respect when Dr Madhuku say at the end of the day the people who are going to make the decisions is Morgan Tsvangirai and Robert Mugabe. But having said that it is also regional and international practices that in any constitutional making process the government of the day must fully and properly fund that process. The government of Zimbabwe is going to do the same in this process.
Gonda: Dr Madhuku, in the current make up, cabinet ministers should be sitting members of parliament or senators, now is there not contamination of governance.
Madhuku: I think in this particular situation there is not much of a difference because the Select Committee that has been set by parliament will be directed not by parliament or by government as the Minister has said, they will be directed by the political parties that constitute those so clearly it is irrelevant that theres a government Minister there, we have a Select Committee there. This whole business of coming up with a new constitution under the Global Political Agreement is a political process thats why I insist that under this process, Zimbabweans are endorsing the principle that Robert Mugabe and Morgan Tsvangirai will ultimately decide what goes into that constitution and that is why we have said we reject it in total and that is why we are not participating in that process.
This idea that the Select Committee will be left independent and implementing the policy is difficult to understand because the Minister will be giving it money, he sets the policy but that policy which he sets – Im sure any policy by a Minister is set in cabinet, that cabinet is led by the various so-called heads of cabinet there – the Principals, and the Principals are directed by their political parties.
Just before I was coming to your interview, I was listening to the news and we were told here that the Zanu-PF politburo is meeting every week these days – and one of the items on the agenda every week is a report on what is going on in the constitution making process. The same applies to Im sure the party that Minister Matinenga is in the MDC-T. So everything will boil down to the political behaviour. If the Gono issue becomes problematic we shall see that it will affect the constitution making process. If theres a bad relationship over the appointment of provincial governors and so on, it will affect. This whole business will end up as a political party process.
Gonda: Before we go I wanted to find out your thoughts on reports that I saw this week about devolution. Now the MDC Minister Samuel Sipepa Nkomo announced an MDC proposal saying it could see the country being divided into five regions each with a budget and a local parliament of its own. Now Minister Matinenga can you confirm if it is an MDC proposal?
Matinenga: Violet what I can only say is that our manifesto in the last election clearly recognised the need for devolution of power. Im not aware of the detail which you refer to but it has always been a position of the MDC that power has unfortunately been concentrated in one person and we need to make people feel that they are part of Zimbabwe and that they are exercising some power but unfortunately at present I am unable to give you the actual detail as to how that devolution is going to be coming about. But it is also an issue which is very much alive in the constitution making process and Im sure that this issue will thoroughly be debated, canvassed and addressed in our new constitution.
Gonda: Dr Madhuku, what are your thoughts on that – on devolution of power?
Madhuku: Yes I think I should say first and foremost that the issue of devolution is an issue that Zimbabweans would want addressed in the new constitution. If Minister Sipepa Nkomo raised those points he was actually raising from the NCA draft of 2001. If you read the NCA draft it is very clear on that and in fact currently it is the best document on devolution that you can come across. The NCA draft came out from the input of the people so Ive no doubt that if theres a genuine constitution making process in this country devolution would end up in the constitution in the manner close to what the MDC-T say – if that it is an MDC position. The MDC clearly as the Minister said in his manifesto talks about devolution and we know that many of our people in the country would want devolution. But devolution will only come in a genuine constitution making process. The unfortunate thing about the MDC-Ts position is that they will not get devolution from this process that they have embarked on, and so they dont know what they want
Matinenga: laughs
Madhuku: if they want devolution they must get a people driven process which is will be genuine. The one that they have put, Mugabe is going to negotiate with them and at the end, therell be no devolution in that constitution.
Gonda: Minister Matinenga I can hear you laughing in the background, would you like to respond?
Madhuku: (laughing) What is the laughter about?
Gonda: (laughing) I dont know, but thats why Im asking.
Matinenga: (laughing) I dont know. Dr Madhuku has got this ability of gazing into crystal balls. Ive already said that devolution is an issue which is dear to the MDCs philosophy and its going to be addressed. So how he can say well you know its going to be different or whatever, I dont know what hes talking about honestly.
Gonda: Dr Madhuku, do you want to clarify?
Matinenga: you want me to laugh again?
Madhuku: Its not a matter of clarification, I know that good things in a constitution like devolution only come out of a good process. The current process is not is a good one. So I dont have to wait for the last Stakeholders or the draft to know that under the current process, Zanu-PF will not accept devolution, they will shoot it down, the MDC will be forced to accept it if they go with that process. So thats what Im simply saying. I would have wanted a situation where we can have an open process and then those good things like devolution come in.
But anyway I think that if we dont get devolution in the constitution that Minister Matinenga is presiding over, then obviously, Sam Sipepa Nkomo and all those people who have put across that proposal will campaign for a No vote because I dont see why they would accept a constitution without devolution.
Gonda: Before I go to Minister Matinenga, Dr Madhuku, since you said this was something that was discussed in the NCA constitution how would you respond to people who say that this issue of devolution has the potential to actually kill a perfectly sound constitutional draft if the rest of the country turns to their tribal affiliations?
Madhuku: No theres no such thing as tribal affiliations. Zimbabweans are very mature if they are given free space. You only get tribal affiliations or those sentiments coming out of an oppressed framework. If we get a free discussion in the country which is what happened with those meetings that produced the NCA draft that Minister Sipepa Nkomo is quoting from. I think Zimbabweans across the various ethnic divides here appreciate devolution. Devolution is not for Matabeleland; its devolution for the rest of the country so it is wrong for those, of course in this case Sipepa Nkomo announcing it might have served the impression that its a Matabeleland thing. Its not a Matabeleland thing. Devolution is, as the Minister there said earlier on, is an aspect of what we would want to see our country develop into and this is why it is in the MDC manifesto, its a progressive thing.
Gonda: Advocate Matinenga, can you just briefly outline or tell us the timeline for a new constitution and also if you can explain reports saying that the time limit was dropped from Amendment 19 by Justice Patrick Chinamasa, what is that about?
Matinenga: Let me just give you the timeline first. I indicated that the first step was the establishment of the constitution of the Select Committee which was done on 12 April. In terms of the GPA we must then hold the First All Stakeholders Conference within three months of 12th April which takes us to about 12/13 July. After that we have four months of formal consultations which will take us to about mid-November. Then after that we have the time to do the real writing of the constitution, another three months which takes us to mid-February 2010. Then thereafter we go to a second All Stakeholders Conference which looks at the draft against what the people have said. Thereafter we take that draft to parliament and we go to a referendum. That is roughly the timeframe.
Yes, Article 6 is not part of Amendment Number 19. Amendment Number 19 only incorporated that part of the Agreement, which is Article 20. Article 20 being the form of government which sets out the powers of the President, cabinet, Prime Minister and so forth. Let me say this, at the time the Bill was brought through parliament, people were so excited and I was one of them that I did not even realise that the Minister who was directing the Bill through parliament had clearly said that the other portions of the Agreement really are of no constitutional value and that it was only Article 20 which was of a constitutional value and that the other Articles were simply being attached to the Bill for information purposes.
So there was no deliberate attitude on the part of Patrick Chinamasa to drop those issues or it was not something done in bad faith, because Ive gone back to the Hansard report and Im satisfied that he clearly explained why every Article was not being made part of the Act. One may also actually say that the fact that, particularly Article 6 was not made constitutional may be advantageous in one way or the other because there has been some unease about the time available for this process. A lot of people have expressed the view that maybe it is too short and if it is genuinely too short, if there is a genuine desire, genuine reason to extend it, it will be easier to extend an Agreement rather than to amend the constitution. Im simply saying this in order to anticipate what may happen. Im not anticipating an extension but Im simply saying if it does come about it is maybe going to be better than in terms of Agreement than in terms of amending the constitution. But I hope not.
Gonda: But was it up to the Justice Minister to just make that decision without consulting the other parties?
Silence.
Gonda: Hello?
Matinenga: (thinking Madhuku had been disconnected) He is lost again and this time I am not coming back.
Gonda; aagh
Madhuku: I am still here (laughing)
Matinenga: (laughing) You know we have to retrieve him every time
Gonda: (laughing) he is still here
Madhuku: (laughing) he didnt want to answer that question. He is avoiding that question
ALL laugh
Gonda: Are you avoiding the question Minister? Are you able to answer that question?
Matinenga: Was that question directed to me or Dr Madhuku?
Gonda: It was directed to you about the Justice Minister just making that decision. I know you said it wasnt a deliberate thing that he did but surely since you are working as partners shouldnt he have at least consulted with you before he had done that?
Matinenga: But some consultation maybe superfluous Violet and if it doesnt really touch upon the essence on what we are wanting to achieve it becomes meaningless.
Gonda: Dr Madhuku?
Madhuku: Well I think that on that point, of course I think the Minister is making clear what happened, I dont think theyd really thought about it – the whole point of whether Article 6 becomes part of the constitution or not. But he is correct in saying that in it not being be part of the constitution theres an advantage, which advantage we havent realised it because we wanted to use it to have portions of it changed – by getting an independent chair or whatever, which we havent.
So it will be very problematic for the government then to at a convenient time to start changing the Article when they were not changing it earlier on when they were saying well we dont want to change what was agreed.
But I can see from what he is saying, there are possibilities of extending this constitution making process, to a period that might not be acceptable – because theres also discussions Violet about this government wanting to remain in power for the next four years or so. I think they dont want elections until 2013. So they are likely to use the constitution making process to claim that they are still writing a new constitution therefore they will go on. This is why they want to control the process.
Gonda: I actually wanted to ask you that question but I just didnt have time but since you brought it up, the MDC has always referred this arrangement as a transition but you said in your statement, I think in an interview that I did with you before – that there are many in the inclusive government who want to have this arrangement last for a five year period. Now who precisely is thinking this will be a five year arrangement Dr Madhuku?
Madhuku: Well I think that currently the President – who is the only person there who has a clear term of office in that government – is the one who took oath on 29th June and he is supposed to go for five years from 29th June. The rest of those other people are the parliamentarians who also have a five year term that they took – but their five year term goes hand-in-hand with the presidential term. So legally they are entitled to go for the next five years from 29th June, both parliament and the government. But then they said in their discussions – which they didnt put anywhere – theres nothing in the Global Political Agreement to say that arrangement will be transitional, they said they will review it after the constitution making process, at least thats what they said. Now what it means is that they may as well choose to go beyond the two years that they have announced because they are not bound to it and our suspicion is that they will go on and on.
I also know from information that we gathered going around and so on that I think they will want to go beyond the two years that we initially heard. So we are most likely not to have any elections until 2013 and what they are going to use is the constitution making process. There is no timeline as to when the President will send that draft to a referendum and if the draft is also accepted at the referendum, theres also no indication as to when it gets into force. So you can get a constitution made and accepted by the people and then taken to parliament but then they say well it will get into force in 2013. So there are so many parameters that might arise.
Gonda: Is this correct Mr Matinenga?
Matinenga: No, but hes certainly correct that the GPA does not give a life span to this transitional government. But again Dr Madhuku properly said that the MDC has always described this period as a transitional period and the MDC wants to effectively govern this country and effective governance is only going to be brought about by elections which are properly managed as a result of a new constitution and that is not in five years time I can assure you that.
Gonda: And a final word Dr Madhuku.
Madhuku: I just need to say to all Zimbabweans who are listening, that the only reason why the NCA is not participating in this process that the minister is describing is because the NCA believes that, that process is not people driven and that the best thing for our country is to get a people driven process .So the NCA is just not rejecting this process just out of sheer interest in rejecting things that are coming the government.
Gonda: And Minister Matinenga, a final word.
Matinenga: Violet, the door is still open for the NCA to come and participate in this process. Please dont lets just speculate because we can only determine as to whether this process is people driven or not, having regard to what is going to be done. I think Dr Madhuku really got to the point but lets see what happens at the First All Stakeholders Conference. It is only at that point that we will be able to see, maybe some clarity, as to where we are heading. But I can tell you this; we are heading for a process which is home grown, of the people of Zimbabwe, inclusive and transparent. Thank you Violet.
Gonda: Advocate Eric Matinenga who is the Minister of Constitutional and Parliamentary Affairs and Dr Lovemore Madhuku the chairperson of the National Constitution Assembly, thank you very much for participating on the programme Hot Seat.