Reply to Masimirembwa and Mudenda's "Zimbabwe: the critique of the Constitution"

Towards the end of the year 2011, the Constitution making process which hitherto had been going on relatively well was plunged into a rare form of chaos.

The genesis of this chaos is the unilateral attempt by Zanu PF through Paul Mangwana, it's co-chairperson in Copac to stop the drafters from continuing drafting the constitution after availing the first four preliminary draft chapters of the constitution to the co-chairpersons of Copac.

The advice for Mangwana to act as he did came from a memorandum that was written to him by Jacob Mudenda and Goodwills Masimirembwa critiquing the draft chapters and impugning the mandate of the drafters. For reasons known to them, on 19 December 2011 Mudenda and Masimirembwa went on to publish their advice to Mangwana as a “critique to the draft Constitution" in The Herald.

Thereafter a lot of accusations were made against the drafters and the MDC. Impressions were created that the drafters had acted outside the mandate given to them by Copac in not looking at the national report during the drafting. They were accused of importing items that Zimbabweans had never talked about into the draft constitution chapters. They were also accused of siding with the MDC among other unpalatable accusations.

The MDC in particular was accused of trying hard to suppress the views of the people of Zimbabwe. The purpose of this article is to attempt to set the record straight for the benefit of those innocent Zimbabweans on behalf of whom we are undertaking this historic work at Copac. We wish to assure these Zimbabweans that, views of the people of Zimbabwe were never suppressed and will not be lost. We wish to demonstrate that the drafters never exceeded the mandate specifically given to them by the co-chairpersons.

No political party stands to benefit from cheating the people of Zimbabwe. In this particular process at no point did the MDC representatives in Copac seek to unilaterally change the views of the people of Zimbabwe.

2. The publication of the advice to Mangwana by Mudenda and Masimirembwa.

Our view is that the two men being part of the technical team representing Zanu PF are and were entitled to give any advice that Mangwana needed. But there was something very wrong when they sought to publish that advice in the press. In that process they undermined both Copac and the receiver of that advice.

These men are working for Copac as part of the technical team and did take part in the production of all the documents that were used by the drafters. To make matters worse, their appreciation of the facts was remarkably poor. Had they engaged Copac first before rushing to the press they would certainly have deleted some of the things they wrote about the drafters and the drafts.

3. The mandate

Masimirembwa and Mudenda were right about the mandate given to the drafters. This mandate was given to the drafters by the three chairpersons of Copac and a video recording of that mandate is available. During the briefing with the drafters a question arose as to whether the drafters should themselves interpret what the people of Zimbabwe wanted in the constitution.

It was felt that the interpretation of what the people of Zimbabwe wanted would be done by the Select Committee and that the drafters would be given what to draft on. That meant that there was no need for the drafters to use the national report. Further the national report would contain contradictory information.

For example it would have a portion where some people said they wanted an executive president. In the same report one would find where people wanted a titular president. If the drafters are to resort to the national report they would have to choose between the two options themselves.

That is not their job. It is the Select Committee that would choose the appropriate option and give same to drafters. It was agreed in the same meeting that the drafters would use the list of agreed constitutional issues that had been prepared by the Select Committee and approved by the management committee.

This document was extracted from the national statistical report by the technical team of which Masimirembwa and Mudenda were part of. It was further agreed that the drafters would use the list of agreed constitutional principles agreed by the Select Committee and approved by the Management Committee.

Again Masimirembwa and Mudenda were part of the technical team that refined this document at Great Zimbabwe Hotel in Masvingo. This document is an extract of the national statistical report. It was agreed that the drafters could fill in gaps were they found them as long as they would clearly indicate were they had done so. It was made clear that these gaps so filled by the drafters would remain suggestions to the Select Committee to be considered in the same vein as the gaps that were being filled by the technical team.

4. The constitution making process as a people driven process

In their attack on the documents used Mudenda and Masimirembwa allege that they were advised that the drafters were availed the national report and chose not to use it. This is not correct.

The process of availing the national report would have entailed the drafters to choose on what to put into the constitution and what to leave out. This can not be the work of drafters. In a process like this the drafters are given what to draft or what to draft on by the Select Committee. This was done.

To put readers into the picture, at the end of the outreach program Copac produced a national statistical report containing everything that was said by the people of Zimbabwe irrespective of whether it was constitutionally relevant or not. Thereafter, Copac engaged technical experts to extract constitutional issues from the whole mass of outreach data.

These experts were drawn from across the political divide. Zanu PF seconded five experts who included Mudenda and Masimirembwa, while the two MDC’s seconded five experts each. With the able help of these experts a document was produced which listed all the constitutional issues that came from the people of Zimbabwe. That document is one of the official documents of Copac.

From the list of all the constitutional issues that came out of outreach, Copac, with the help of the Technical Team produced a list of constitutional principles. Thereafter an exercise was undertaken to determine those issues that would go into the final draft. This culminated in the production of the document entitled “list of proposed constitutional issues, Rainbow Towers, Harare".

This document contains all those issues that the Select Committee with the help of the technical committee, agreed to be in the constitution. It also contains those issues that were “parked" and are subject to further discussion in the Select committee. What is important is that this document is a refined extract of the National statistical report.

The Select Committee secured the approval of the Management Committee to start drafting on the agreed issues and that is why the drafters were engaged.

Further, Masimirembwa and Mudenda think that the Copac national report is available. It is not yet available.

What we have is the National Statistical Report which is in two versions. Further these gentlemen seem to think that the information from the outreach meetings constitute the national report. This is not correct.

The national report would contain information from the 1950 wards, plus views from the Diaspora, views from Zimbabwean institutions, views from people living with disabilities as well as views from children.

Lastly the two men seem to think that the drafters should look at the frequency of figures in the National Statistical report to determine which view should take precedence over the other. Nothing could be more irresponsible.

First, frequencies in the national report show the number of wards or meetings in which a particular issue was mentioned. It does not show the number of people who supported that view. It is therefore not a basis of determining the majority or minority status of a view.

Second, the frequencies do not take into account the views gathered outside wards. In this case they do not include the views from the Diaspora, or of the institutions or of people living with disabilities. They also completely ignore the views of children. Therefore, using this statistic to justify the inclusion or exclusion of a view is first class cheating.

Finally all the documents subsequently produced by Copac follow the thematic areas which were followed during outreach.

5. The draft clauses

Having tried to show that the drafters acted outside their mandate the authors of the so-called critique attempt to attack the substance of the draft. Their criticisms of each clause will not be repeated in this article. But the substance of the criticism will be replied to

On Clause 1:

According to Mudenda and Masimirembwa, the drafters should have followed the Kariba draft in describing Zimbabwe. They opine that drafters should have followed the South African example.

Yet elsewhere they criticize the drafters of following constitutions of other countries. The criticism is without any merit. The drafters got information they drafted from issue number 4 on page 9 of the document on agreed issues that was extracted from the national statistical report.

On clause 3:

Masimirembwa and Mudenda want the drafters to include Zimbabwe's liberation struggle in the founding values of the constitution. This shows clearly that the gentlemen were confusing the founding values and principles with the preamble. The preamble is coming and it will include such issues as the liberation struggle.

However, what the drafters put in is found in the document on “draft constitutional principles" compiled by the Select Committee and approved by the Management Committee. It is also found on pages, 9, 11 and 61 of the document on the "proposed list of constitutional issue" that Mudenda and Masimirembwa helped to compile for Copac. This document was approved by the Management Committee.

Mention of minorities

The gentlemen think that a clause that “provides for recognition of the rights of racial, ethnic, cultural, linguistic, religious and political minorities “should not be there. This is completely surprising. This clause is contained in the document entitled “draft constitutional principles" that was drafted by the Select Committee and approved by the Management Committee. It is also in the document on agreed constitutional issues. Contrary to what Mudenda and Masimirembwa think, protecting rights of minorities does not compromise the oneness of Zimbabwe. It is the suppression and domination of minority communities that lead to wars and other forms of civil strife.

6. Conclusion

A simple survey of the documents given to the drafters shows that these people did not exceed their mandate but acted like competent and patriotic Zimbabweans. At the last meeting of the Select Committee the drafters were correctly cleared of any wrong doing and were allowed to continue with their work.

Copac has done a tremendous job of keeping a paper trail of all the issues that will finally be in the constitution. At every stage every one of the political parties has been well represented. It is important that political parities realize that this project is for the people of Zimbabwe. We will seek to serve the people of Zimbabwe with honor and devotion. In the meantime we urge patience of all the stakeholders while we craft the New Constitution of Zimbabwe.

Post published in: Analysis

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