Constitution Watch of 30th March 2012 [COPAC calls back Lead Drafters]

CONSTITUTION WATCH 2012 [30th March 2012]

COPAC calls back Lead Drafters

Drafters Re-engaged for Ten Days

On Tuesday 27th March the three lead/expert drafters started work on the next draft of the new constitution. The team remains unchanged, despite repeated calls from certain quarters within ZANU-PF for all three to be replaced. Its members are:

• Justice Moses Chinhengo [former High Court judge in Zimbabwe, currently a judge in Botswana]

• Mrs Priscilla Madzonga [senior legal practitioner in private practice, formerly a drafter in the Attorney-General’s Office]

• Mr Brian Crozier [former Director of Legal Drafting in the Attorney-General’s Office].

All three were members of the drafting committee that prepared the draft constitution produced by the Chidyausiku Commission in 1999.

The drafters have been contracted for ten days. Allowing for breaks for weekends and the Easter public holidays, this indicates that COPAC envisages the drafters’ current task being completed by Wednesday 11th April.

Working Arrangements

Drafting venue undisclosed

As with their first period of drafting in December and January, the drafters are working at an undisclosed venue so that they will not be subjected to undue interference, influence or harassment. Other COPAC activities have suffered from this.

Interaction between drafters and COPAC Co-Chairs’ Forum

During their first period of drafting the three drafters saw little of the COPAC co-chairpersons or other COPAC members. This time round, working arrangements are different. Instead of leaving the three drafters to get on with their work, COPAC has arranged for regular interaction between the drafters and a COPAC team – the “Co-Chairs’ Forum”. The Co-Chairs’ Forum is meeting, separately from the drafters but at the same venue, to examine the drafters’ work in instalments as each Chapter is completed. This enables exchanges of views and facilitates adjustments to the documents as work on the draft proceeds.

Composition of Co-Chairs’ Forum

This consists of the three COPAC co-chairpersons and three expert advisers, with the co-chairpersons’ personal assistants in attendance. The expert advisers, one nominated by each of the three GPA political parties, have all been involved in the constitution-making process since October last year – they are members of the technical committee that COPAC assembled to assist them, first in framing the constitutional principles and framework to guide the work of the lead drafters, and then to assist in reviewing the drafts produced by the drafters. They are:

• Alex Magaisa [nominated by MDC-T] Mr Magaisa is a Zimbabwean lawyer who currently lectures at the University of Kent in the United Kingdom and is a regular contributor to the Zimbabwean press on legal and constitutional issues.

• Jacob Mudenda [nominated by ZANU-PF] Mr Mudenda, a Bulawayo lawyer and businessman, is the former Zanu PF governor for Matabeleland North and a member of the Zimbabwe Human Rights Commission. He was a co-author of the caustic critique of the drafters given prominence by the Herald just before Christmas last year, coinciding with the newspaper's publication of the leaked draft of their first four chapters.

• Josphat Tshuma [nominated by MDC]. Mr Tshuma, a legal practitioner in private practice in Bulawayo, is a former president of the Law Society of Zimbabwe. It was during his presidency that the Law Society produced its Model Constitution for Zimbabwe in October 2010 [see Constitution Watch 23/2010 of 6th November 2010].

Hopefully there will be no leaks to the media this time

After the first draft of Chapters 1 to 4 were leaked to the Herald in December last year and then the other chapters that the drafters delivered to COPAC on 23rd January, resulting in the first draft of the constitution being published in the Herald even though it was incomplete, the lead drafters were subjected to a barrage of criticism in the media, much of it misdirected and misinformed. It is hoped that the whole team involved in this draft will take responsibility that there are no leaks. It is also hoped that the co-chairs do not issue contradictory statements – this could be averted if all three signed any statement given to the media, with no individual variations revealed in the course of exchanges with reporters. The rest of the team should have as part of their contracts that they do not divulge information to the press and any auxiliary help such as assistants, secretarial staff etc. should also sign something to this effect. Otherwise the constitution will be prejudged by the press before the people have a chance to fairly assess it. The lead drafters have been entirely professional – not “leaking” to the press and refraining from replying to press criticism.

What the Drafters are Doing

The drafters are tasked with producing the next draft, expected by COPAC to be the final draft. They have before them their first draft, as reviewed and changed by COPAC since early January, when it started working through the first four chapters. The 23rd January draft was not complete, because there were significant blank spaces in it, awaiting filling-in later. Blank spaces were left for provisions covering the so-called “parked issues” – issues on which, because COPAC had not yet reached consensus on them, it had not been possible for instructions to be given to the drafters on the content of the desired provisions.

They now have COPAC’s instructions on what changes should be made to provisions already framed and what should be added to fill most of the spaces left in the first draft, covering those parked or outstanding issues on which COPAC and/or the Management Committee and/or the GPA negotiators have been able to reach agreement since January.

Agreement on Previously “Parked” Issues

Co-chair Douglas Mwonzora has said that the parked issues on which agreement has been reached include:

• Death penalty A compromise has been reached between total abolition of capital punishment and simple retention of the present position. According to Minister of Constitutional and Parliamentary Affairs Eric Matinenga, the Management Committee has agreed that the death penalty will be limited strictly to “aggravated murder”. [Comment: This agreement will certainly reduce the list of offences attracting capital punishment – treason will come off the list, along with murder that is not “aggravated”; and Parliament will not be able to create new capital offences by legislation.]

• Land tenure There will not be a blanket provision making all land in the country State land, which is what ZANU-PF wanted. But land that has already been gazetted and designated under the land reform programme will remain State land, for which 99-year leases, but not title deeds, can be issued.

• Appointment of Service Chiefs This will be subject to Parliamentary approval.

• Presidential term limits Presidents will not be able to serve for more than two terms, but terms already served under the Lancaster House constitution by President Mugabe will not count.

Outstanding Issues Still to be Agreed

Certain issues have still not been finally agreed between the parties. The list varies depending on the source of the information, but the following issues have been mentioned in recent days:

• Dual citizenship

• Compensation for expropriated land Should there be a constitutional guarantee of proper compensation for those who bought land after Independence, having first obtained a Government “certificate of no present interest” in its acquisition?

• Devolution What the constitution should say about the structure of devolved government entities at provincial level.

• The role of the chiefs in the Senate [although there seems to be agreement that the number of chiefs be reduced from 18 to 10]

• Whether there should be an Independent Prosecuting Authority, distinct from the Attorney-General, thereby restricting the Attorney-General’s role to that of chief Government legal adviser

• Structure of the Executive Whether there should be a non-Executive President and a Prime Minister, or an Executive President; and whether there should be one or two Vice-Presidents.

Next Steps in the Drafting Process

Such issues obviously present something of a problem for COPAC, which is under increased pressure to produce results quickly. If there are still outstanding issues that are not resolved before Wednesday 11th April, i.e., while the lead drafters are still at work and before theire current engagement comes to an end, there will be a second incomplete draft to come out of the process. If this is the case, this second draft is likely to go to the principals for finalisation. This would mean the lead drafters would have to be called in again to incorporate the principals’ decisions in a third draft. Indeed, COPAC’s MDC-T co-chair Douglas Mwonzora has referred to the drafters being involved in “fine-tuning” up to the end of April. [A possible solution mooted by COPAC would be to request the drafters to come up with alternative provisions catering for the various positions that have been put forward for consideration on outstanding issues. That arrangement would in theory allow for later adoption of whichever of the alternative provisions fits the positions eventually agreed, without involving the drafters again. In practice, however, it is far more likely that drafters would have to be called in again.]

Another point is that even after the Second All Stakeholders’ Conference or after the post-Conference but pre-Referendum debate on the draft in Parliament, further tinkering may be needed – which would mean calling back the lead drafters before the draft is ready for gazetting prior to the Referendum.

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