Constitution Watch of 20th February 2012

COPAC’s Constitutional Principles

There were 26 constitutional principles, together with a framework, given to the expert drafters to follow when drafting the new constitution. These were drawn up by representatives of all the parties to the inclusive government at a pre-drafting workshop held by COPAC in November 2011.

The 26 principles are now available and will be set out in full in the next Constitution Watch. This is a welcome step towards greater transparency of the constitution-making process. It is to be hoped that COPAC will follow it up by releasing official texts of other preparatory documents – such as their framework for drafting and any other instructions to the three lead drafters.

Leaked Draft’s Provisions on Presidential Candidates

A hullabaloo has been kicked up by some organisations and individuals publicly criticising COPAC and the three lead drafters over the leaked draft’s supposed qualifications for Presidential candidates. They complain that the draft’s provisions would exclude the octogenarian President Mugabe from standing as a candidate in the Presidential elections:-

• it would bar Presidential candidates who are over the age of 70

• the draft’s provision for Presidential term limits would prevent President Mugabe from standing because he has already served for more than two terms

If we assume that the “leaked” draft published in full by the Herald is in fact the draft delivered by the expert drafters to COPAC towards the end of January [this is probably a reasonable assumption, because COPAC spokespersons – while stressing that publication of the document was unauthorised and premature as there will be changes made to it – have never suggested that it is not a true copy of what the drafters produced], then the protests turn out to be unfounded.

A careful reading of the draft will show that neither of these complaints is based on what the draft in fact says.

There is no age limit for presidential candidates in the draft

What the draft says about term limits: “A person is disqualified for election as President if he or she has already held office as President for one or more periods, whether continuous or not, amounting to ten years” [clause 6.4]. This does not necessarily bar President Mugabe from standing again. As the clause stands, its likely interpretation would be that it is a prospective limitation only, i.e. referring only to periods of office under the new constitution. [Principles of legal interpretation based on the presumption against retroactive interpretation would support this.]

But to prevent subsequent arguments over interpretation, the clause should be clarified by adding either the words “whether before or after the commencement day” [i.e. the coming into force of the new Constitution], which would clearly exclude President Mugabe, or “after the commencement day”, which would allow him to stand. Alternatively, the point should be clarified in the schedule to the constitution that lays down transitional provisions governing the changeover from the old constitution to the new.

Any clarification, however, would be a political decision which the expert drafters could not insert until instructed to do so when COPAC has resolved this issue with the GPA parties.

It is important that there is clarification, as a look at what is happening in Senegal will underscore. A new term-limit provision was put in place by constitutional amendment before the now imminent Presidential election. There was a protest by opposition parties when the present incumbent, President Wade, who is 85 and has been President for the last twelve years, announced his candidature. The constitutional court judges [appointed by President Wade] ruled that the term-limit provision did not apply retrospectively, meaning that President Wade can stand again. The opposition argue against the ruling and have taken to the streets in violent protest.

Other Issues Still Outstanding

As well as clarification on presidential term-limits, COPAC has said the parties still have to reach agreement on other points before drafting can be resumed and another draft produced:

• structure of government [a MDC-T negotiator Tendai Biti says the disagreement was over whether there should be an executive president deputised by one or two vice-presidents, or a president and prime minister]

• devolution

• death penalty

• dual citizenship

• independent prosecuting authority.

The schedule on transitional provisions is still incomplete and deciding on some of its contents may prove contentious. For example a paragraph headed “Existing Officers” remains to be written; this is where one would expect to find provision for retention, change or validation [validation is what the Kenyan constitution required] of persons holding key posts.

Further Delays in Constitution-Making Process Likely

Speaking at their press conference on 9th February the COPAC co-chairs, ever optimistic, suggested that the draft constitution should be complete by the end of February. That is now impossible, given the essential political decisions still to be made [see above] before the three lead drafters can be instructed to produce another draft.

Other potential delaying factors are:

• the decision by the three GPA party principals to get involved in monitoring the constitution-making process.

“The Principals agreed that they would now be monitoring the constitution-making process at their level. They agreed that the date for the next election will be determined by a process which involves putting in place the necessary reforms that will ensure a free and fair election. To this end, the Principals want a report on the constitution making process from the Management Committee with estimated time frames of all the issues that require implementation.” [Prime Ministers Statement after the Principals meeting of 8th February]

• the need for Minister of Justice and Legal Affairs Patrick Chinamasa, ZANU-PF negotiator and a key member of the COPAC Management Committee, to be out of the country to represent Zimbabwe at the 19th Session of the UN Human Rights Council in Geneva, which runs from 27th February to 23rd March.

It is only when consensus has been reached on the next set of instructions for the three lead drafters that they can be given the go-ahead to produce the next draft. COPAC has planned for another 15 days work by the lead drafters. This may not be enough, as once the revised draft is ready it will also have to be scrutinised by COPAC and its expert advisers, and may also require changes.

Principals Get Report on Constitution-Making Process

At the principals’ meeting today they were presented with a report from the COPAC Management Committee. They have been promised the first draft, after it has been reviewed [and presumably revised] by the Management Committee, for their next meeting on 27th February.

[Reminder about Management Committee: In September 2009, following a meeting of the GPA party principals, the composition of the COPAC Management Committee was modified. The Minister of Constitutional and Parliamentary Affairs explained that the purpose was “to provide leadership and policy direction to the constitution-making process”. No longer a purely internal sub-committee of the Parliamentary Select Committee, the Management Committee had its membership expanded to comprise: the three Select Committee co-chairs; the six GPA party negotiators; and the Minister of Constitutional and Parliamentary Affairs.]

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