CONSTITUTION WATCH 2012 [3rd February 2012]
Drafters Complete Preliminary Draft of 18 Chapters of New Constitution
On 23rd January the three lead drafters completed their work on the preliminary draft of the new Constitution in accordance with their instructions from COPAC and handed the draft over to COPAC. They had started on the 5th December. The drafters managed to bring in their draft within the 35 working days agreed in their contract. [Constitution Watch of 10th December 2011 predicted a completion date of 1st February, based on the 35-day period starting on 5th December. But, because the drafters had met for discussions before the 5th December, a few extra days were included in the 35-day period, bringing it to an end earlier than expected.]
COPAC announced this achievement in a press statement issued on 24th January. This statement also gave the impression that the Second All-Stakeholders Conference is not far off: “The final product of the ongoing constitution-making process is now taking shape. After this, all stakeholders will be afforded an opportunity to comment upon it through their representatives at the Second All Stakeholders’ Conference.”
Second All-Stakeholders Conference Not Imminent
According to Article 6 of the GPA once the draft constitution is completed it must be tabled at a Second All-Stakeholders Conference. But in fact there is still a long way to go before the Second All-Stakeholders Conference. There are the following stages still to complete before it can be held:
Finalising the Draft
There are at several aspects to this, all of which may take time:
• COPAC scrutiny of the draft COPAC – the client – has to scrutinise the drafter’s work and may require changes. What COPAC now has is only a “preliminary draft”, as 24th January COPAC press statement significantly said. In other words, the document is certain to go back to the drafters for further work – depending on the outcome of COPAC’s review, which COPAC said it expected to complete within two weeks, i.e., by 8th February. Changes to the preliminary draft are only to be expected.
It is commonplace for legal documents to go through several drafts, until the client is finally satisfied that the drafters have captured what the client requires. There is no reason for the new constitution to be an exception to this – indeed, the need for several drafts may well be greater in framing so important a document as a constitution. As the COPAC co-chairs said in a press statement on 13th January: “The Select Committee itself is seized with deliberating on these drafts, during which process they are subject to changes and continuous development until they reach their final form.”
• COPAC still has to agree on three principles on which they have not so far been able to reach consensus. As the 24th January press statement carefully mentions, the draft covers “the issues that were agreed upon”, i.e., the issues on which COPAC had managed to reach consensus on when putting together the constitutional principles and issues for inclusion in the instructions to the drafters. The press statement says that decisions on these issues are also expected to be reached during the two weeks set aside for reviewing the draft. The statement did not identify the issues but the chairperson of the COPAC Information and Publicity Sub-committee, Hon Jesse Majome, has publicly stated that there are only three issues not yet agreed:
• the death penalty
• the question of dual citizenship
• how provincial governments will be chosen, i.e., whether they should be appointed or elected.
The 24th January press statement recorded the hope that consensus on these principles would be achieved within the current two-week review exercise. But, talking about the 26 principles that had been agreed, COPAC co-chairperson Mr Mangwana has recently stated that although these principles had been decided, they were “not cast in stone”.
• Often the “devil is in the details” Agreement on principle does not always lead to agreement on the details. For example there might be agreement on devolution of power to provincial and local government – but division of the tax base to implement this may cause stumbling blocks; there may be agreement on proportional representation – but not on how to achieve this [it will obviously affect political parties radically]; there may be agreement for an impartial security forces – but not on how this can be ensured. Disagreement on details can slow down the whole process.
• Clearance by Management Committee and the parties Given the way in which the constitution-making process has proceeded so far, it is inevitable that the completed draft constitution will also require the approval of the COPAC Management Committee [which includes the GPA negotiators] and the three GPA parties, including the party principals.
Translation of the final draft
Right from the start COPAC has promised translation of the draft into vernacular languages and Braille. This is not a small undertaking and it will have to be done before the Second All-Stakeholders Conference. As COPAC repeated in its news release of 13th January, at this conference “Zimbabweans will, through representatives, have the chance to comment on the draft. COPAC will ensure that the draft, when ready, is available in local languages and in Braille.”
[Comment: Translation cannot start until there is complete agreement on a final draft. Also, translation into local languages is something on which opinions notoriously differ, so there is plenty of scope here for delay while the parties haggle over translation issues.]
Time for public scrutiny
If the Second All-Stakeholders Conference is to serve a useful purpose and justify the enormous costs entailed in public consultation, the final draft must be distributed widely and the public must be given sufficient time to digest it.
Need to have COPAC National Report made available
If there is to be real, meaningful discussion at the Second All-Stakeholders Conference, it is essential that the documents provided to participants ahead of the conference should include at least the COPAC national report, and preferably the provincial reports as well. Without the reports how will participants be able to assess and comment on COPAC’s success or otherwise in giving effect to the people’s wishes? This presents a problem, because both MDCs have insisted that COPAC has not yet agreed on the national report. MDC-T co-chair Mwonzora has said that the purported national report published in The Herald in late December, and regularly featured in ZTV news bulletins ever since, is not the COPAC national report. [Comment: the Chidyausiku Constitutional Commission in 1999 also held a public outreach exercise and published its provincial and national reports well ahead of the release of the draft constitution.]
Causes for Concern
Unwarranted Criticism of Drafters
Having been selected by all three parties in COPAC and been given their mandate in the form of the principles and a framework which COPAC had agreed on, the three expert drafters chose to work at a secret location where they could get on undisturbed by the press and the public. But, when COPAC issued a press statement on 5th December saying drafting had started, although it requested members of the public and stakeholders to wait for further information to come from COPAC and to be wary of statements about the process from individuals or organisations claiming to have inside information, regrettably, this did not prevent trouble outside the actual drafting process.
• A foretaste of possible trouble was the assertion in the ZANU-PF Central Committee report to the party’s annual conference in Bulawayo that “ZANU-PF reserves the right to dissociate itself from a draft constitution which seeks to undermine the cardinal goals of our national liberation struggle and our national culture and values.” This was backed up by insistence on an early end to the inclusive government and the hastening of the next elections.
• A week before Christmas, after the drafters had handed over their preliminary draft of the first four chapters of the constitution, there were reports that ZANU-PF COPAC co-chair Mangwana had written to the drafters alleging they had departed from their mandate and instructing them to suspend work. Minister of Constitutional and Parliamentary Affairs Matinenga responded that Mr Mangwana had no right to give such orders and insisted drafting should continue.
• On 19th December The Herald published a document taking up four full broadsheet pages purporting to be the text of the COPAC National Report, buttressed by a critique of the four draft chapters. The critique was attributed to Messrs Muzenda and Masimirembwa, two of the five ZANU-PF representatives on the technical team set up by COPAC to assist it with the drafting stage. This critique was to the same effect as Mr Mangwana’s reported intervention. The COPAC chief executive said COPAC had neither released the National Report nor requested or authorised anyone to publish it, and MDC-T co-chair Mwonzora issued a statement saying that the national report had not yet been agreed on and that the document published in The Herald was derived from a compilation of material designed to serve the ZANU-PF agenda.
• A full COPAC select committee meeting on 21st December absolved the drafters of the accusations of departing from their mandate, and confirmed that they should continue their work. Of particular interest was the fact that COPAC’s record-keeping proved its worth and enabled the select committee to reach its decision after viewing a video recording of the meeting at which the drafters had been given their instructions by the three co-chairpersons. The recording served to refute allegations that the drafters had not complied with their instructions from COPAC. Revised instructions were given for the sake of clarity.
War veterans harass COPAC
Invasion of COPAC retreat in Vumba Mountains COPAC members and technical advisers retreated to a remote Vumba hotel for a week’s intensive undisturbed work in early January. On 11th January, just after ZANU-PF delegates had left, hordes of war veterans descended on the venue and harassed MDC members still there, singing liberation song and chanting party slogans; they carried a petition complaining of departures from the people’s wishes and demanding a stop to the drafting process.
Disruption of COPAC 13th January press conference A COPAC press conference at its Milton Park headquarters on 13th January was disrupted by over a dozen extremely vocal war veterans representatives whose noisy intervention after the reading out of the co-chairs’ press statement effectively prevented other persons present from asking questions. Their complaints repeated those voiced two days before in the Vumba and echoed remarks attributed to war veterans leader Jabulani Sibanda in the aftermath of The Herald’s publication of the purported COPAC report and draft chapters before Christmas.
A warning sign? Incidents such as these prompt memories of the chaos caused by war veterans and others at the First All-Stakeholders Conference in Harare in 2009 and fears of a repeat performance at the Second All-Stakeholders Conference.
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