Lance Guma: With so much misinformation around the constitution making process SW Radio Africa have invited lawyer Jessie Majome, who is the chairperson of the subcommittee on Information and Publicity in COPAC. Majome is also the Deputy Minister of Women’s Affairs and joins me tonight on Question Time to answer questions sent in by SW Radio Africa listeners. Thank you for joining us Jessie.
Jessie Majome: You are welcome Lance.
Guma: Now before we get to the listeners questions, can you give us a brief summary of where the constitution making process is right now and what is left to be done?
Majome: We are now at the final stages of what has turned out to be a protracted drafting phase of the constitution. You’ll recall that the Select Committee of parliament was appointed on the 13th of April 2009 to facilitate a process where Zimbabweans make a constitution for themselves.
We held our first all stakeholders’ conference on the 14th of July 2009 to bring aboard members of civil society, that is broader stakeholders beyond the political parties and beyond the politicians, and we so did so and we devised thematic areas under which the constitution would be written and also devised the questions.
Then we went for outreach, a massive public outreach exercise whereby we held at least one meeting in each of Zimbabwe’s 1,957 wards and that is a total of about 4,700 meetings where we had about 1.6 million Zimbabweans attending.
We also received submissions through our web site and we also received submissions from institutions and held special outreach meetings with parliamentarians and with representatives of people living with disability.
And so from the beginning of last year, from the end of last year in December, we started drafting and our drafters usually did a first run of four chapters, then eight and now they have actually completed a first run of the draft except for initially there were just four issues:
One, the issue of the death penalty; that of dual citizenship; that of whether we should have two vice presidents and the last one, that of devolution of power but I’m happy to say that those sticking four issues have to a large extent, been resolved. There’s consensus now, we’ve narrowed our differences and what remains is now just the detail and the editing, the continuous editing and re-editing of the constitution, the draft constitution.
Guma: Now when you talk about reaching consensus, it’s been reported widely that you’ve agreed on most of the issues but the issues pertaining to things like dual citizenship, Diaspora voting rights and others, have been ‘parked’; that’s the technical term that has been used and referred to parliament. Is that progress or you in essence as the MDC have just simply conceded to Zanu PF?
Majome: You see, that when I, I’m a member of MDC but my party has its very firm views but I’m a member of the Select Committee of parliament that is representative of Zanu PF and from the Movement for Democratic Change led by Professor Ncube and there’s also a Chief in that .
So when we sit as a Select Committee we are not sitting as political parties; you agree that if you have four let’s say we have four different people sitting together and they don’t agree and they have even in terms of numbers if somebody is insisting that seven is the right answer, another one insists that it is one, another one insists that it is three, another one insists that it’s a hundred, you’ll not get, you know the answer is neither; you’ll have to average it out, the average is neither a hundred, nor seven, nor one or three. It is an average of all those four positions so this is what happens in a process like this…
Guma: But can you call it an agreement? It’s not essentially an agreement, you’ve simply agreed not to deal with the issues.
Majome: No, no, no Lance I’m sorry to say you are, that is not what in fact happened. It is not correct that the issues were referred to parliament. No they were actually resolved, there was common ground that was struck and then in terms of what actually gets encapsulated in the constitution, because there are different styles of how you write constitutions
You can have a constitution with a thousand pages that spells out the details of each and every thing or you can have one that spells out the principle and the position and you leave it to parliament to flesh out the details of what happens.
So this is what has happened to the issue of dual citizenship for example, as well as the issue of the devolution of power and I think I need to underline this: as far as dual citizenship is concerned, the resolution has been that it has been agreed that clearly there’s no way that you can deprive Zimbabwean citizens by birth, citizens by birth, of their citizenship even if they decide to acquire additional citizenship of other countries, they cannot be forced to renounce their Zimbabwean citizenship and that’s that.
However, parliament shall be at liberty to legislate if it so wishes to prohibit dual citizenship if it so wants to prohibit it, that’s one; and then two on devolution of power, it has been resolved that there shall be devolution of power to political and economic power to the provinces in the sense that there will be created what are called Provincial Councils who are responsible for their respective provinces but however, these Provincial Councils are representative also of national leadership elected from the provinces.
But however an Act of parliament as it should rightly do must spell out exactly what matters, how the Provincial Council operates…
Guma: You talk about an Act of parliament as presently constituted, Zanu PF controls the Senate, so whatever the two MDCs can pass through parliament using their majority, Zanu PF can always block that using the Senate so essentially what they’re not comfortable with will not get passed.
Majome: Lance you are forgetting the very important fact that a constitution is the supreme law of the land; we are writing a brand new constitution and it being the supreme law of the land that also determines how governance is going to be ordered; it means that there will have to be an alignment, a re-alignment if the constitution is passed.
It totally reconfigures how power comes from the people and how it is distributed. It means that there should there be elections to align the structures and the systems of government to the new constitution dispensation. That is why it will certainly become necessary to hold elections, to ask, to hold elections under the new constitution and in any event, so there will be definitely be elections and I mean who can predict who will be in power?
There might even be totally new parties – who knows? And also in any event, look, clearly the term of the seventh parliament is ending in 2013 and a constitution is not, we’re not writing a constitution for the next two months, it’s a constitution for posterity. It is usually the most difficult piece of legislation to ever amend. So it’s a constitution going now into the future beyond our present circumstances.
Guma: There was a lot of initial talk about COPAC writing a people driven constitution; Takudzwa Leonard Mathende on FaceBook sends in a question for you saying people spoke during the outreach process but now Zanu PF have hi-jacked the process and are now arm-twisting the views of the people.
Majome: Ah well look I can, I don’t hold any brief from Zanu PF, I can never say they are doing so or they are or they’re not but I think it’s important to note that there is contestation going on; it’s an arena where different political viewpoints are being pushed, political parties are doing that, civil society is doing that, different lobby groups are doing this.
This is a constitution making process that involves the views of people, is essentially a contest of ideas and thankfully, we usually will say may the best contestant win but hopefully in our particular case the best ideas, the best value for Zimbabwe will win and not from any particular person or any particular party.
And I say this because this process has come up with a list, distilled constitutional principles that guide this particular process and there are very lofty principles that are very good that should if the constitution adheres to the route it should do, it will result in a constitution that is good for Zimbabweans.
Guma: Pick out some of the highlights of this new draft constitution for us – what does it say for example on key issues like a Prime Minister, President, Attorney General, death penalty – can you just summarise the key highlights for our listeners.
Majome: Hmm you know I have difficulty in doing that Lance because it’s a work under construction, it’s a work that is isolated and going over and over and so at COPAC we are going to release this when we are done with it…
Guma: But as it stands currently, what are the proposals?
Majome: You see that is the difficulty Lance because it’s a draft, it’s a very long, it’s a very, very long document that is still also more or less under construction, that has agreed principles and you know, and what I can say broadly because while this draft there have been certain elements of the press have stolen in this draft and published; even the Herald were claiming that there is something called a final draft there is nothing like that at the moment.
You know we are really hard at work to try and finalise it so we can print it and publish it and release it so that everybody can have a copy and actually read it for themselves. But I can guarantee you that it will observe the principles of you know of good governance, of the rule of law, of human rights, of peace and the security of citizens and the good management of Zimbabwe because it’s a whole draft.
But what I’m saying the draft is not yet out, it’s not yet ready, it isn’t finished so that we can release it out into the, but I can tell you that there are ideas such as creating a National Prosecution Authority that is responsible let’s say for prosecution because it would be new, there is nothing so far in Zimbabwe, an independent body that deals with prosecution, separate from the Attorney General’s Office.
I can tell you that it proposes to introduce economic, social and cultural rights actually not there before in our constitution, even a 50% quota for women in decision making as well as even this issue of devolution of power which will include for the first time a enshrining of local government in the constitution.
It will also create provincial councils and having governors elected and issues, it proposes to do a lot of, already a lot of things and proposes to create commissions, independent commissions that are really independent such as the Human Rights Commission, the Anti-Corruption Commission, Gender Commission, you know and Land Commission. It also even proposes to, it proposes to do very many things, it is very difficult to actually to say the entirety of it because it is still under construction.
It proposes to recognize children’s rights which is something that has never been known about in Zimbabwe’s constitutional history and it also proposes to really strengthen parliament to oversee the executive decisions, proposes to appoint even a parliamentary public accounts you know like committee that parliamentary appointments committee and also generally give parliament a very strong hand in supervising the way the executive runs issues and also to, even in the manner of appointments to key public institutions, parliament will have a say that it didn’t have before.
Those are more or less some of the principles that are being enshrined in the constitution but as I indicated to you, it’s in a state of flux, it’s still a work under construction and it’s what is called a iterative process that goes back and forth, it comes from the drafters, they put a draft, the select committee looks at it and then where there is deadlock, it goes to the management committee to try and resolve them.
And if there is fail and I must repeat this is resolving issues not what is coming from political parties here in the Select Committee but from the views that actually came, the data that was received at COPAC. Agreement because some of the views are different like on the death penalty say for example – some want it, some didn’t want it and even dual citizenship, some didn’t want it, some wanted it. So the Select Committee try to use those principles and international best practices as well to try and reach like a common point.
But where it failed, we have done what we call parking issues; when we have parked issues, the Management Committee has then helped to try and resolve the parked issues and as I indicated we have actually done very well. We are more or less done so we are now in the final phases of polishing up the draft.
Guma: But it seems rather odd to park issues when the process had an outreach exercise where people made their views clear. Why don’t you go with what the majority views were?
Majome: Lance this was not a majority kind of exercise; it was both a qualitative and a quantitative exercise. It’s not possible, it’s actually very, like it would be misleading and wrong to use the majority view because for starters we were not counting, you know we were not making people vote at meetings to say how many of you want dual citizenship for example.
It’s not workable because like I said we had about 4,700 meetings, I mean meetings that we had countrywide. One meeting would have 200 people at that meeting, another one would have 2,000 so would we be able to say, and so it’s not possible to weigh the 200 and the 2,000 they are very different.
The people who were 2,000 were not more important that the 200 and even and at a meeting in any event one person, few people, not everybody will speak at a meeting so each and every view that we were getting was important. And also if you consider that in certain instances certain people failed to come to meetings because there were reports of intimidation in certain areas.
So if you are going to count the number of people at a meeting and say because this view was said at a meeting where there were a thousand, two thousand people and when there was intimidation in certain instances, I’m not saying in all, then you’d be really missing the point.
Guma: Now a common criticism, or one major criticism pointed out by people for example like Dr Lovemore Madhuku from the National Constitutional Assembly is that the current draft is not very different from the current constitution because the presidential powers have not been reduced much and Madhuku’s position is that it should be the two MDCs which must be complaining about the defects and not Zanu PF.
Majome: Again, look you know it’s very interesting that Dr Madhuku holds that view but maybe you, also you could be interested and really amused if you read the other criticisms that are coming also to the Select Committee that they are saying that in the leaked drafts that they saw there’s been too much whittling down of the president’s powers because parliament is now, like I said to you, it’s creating a very strong parliament.
There are criticisms, I think it is interesting to hear different things said about it. Professor Lovemore Madhuku says so, other people think differently and so on and so I think that when you get different views on the same subject it means you know you are on a controversial subject. It means there is something there. What the Kenyans, well usually say that in the making of a constitution, there is something for everyone.
You can’t, like I said to you, it’s an averaging process, you cannot, it’s an exercise in political compromise, that’s what it can only be. A massive exercise in that. No one party, no one party or one stakeholder can have their total say. There’ll be something that you like that I don’t like, something that I like that you don’t like, there will be something that Zanu PF like and the MDCs don’t like, there’ll be something that the MDCs like and vice versa.
This is not going to be an MDC-T document, it’s not going to be an MDC led by Professor Ncube’s draft, it’s not going to be a Zanu PF draft. You know it can’t be let’s say a like a human rights NGO draft alone. It’s going to be, I think we need to really start understanding that we cannot have an absolute in this particular exercise otherwise we’ll have twelve million different versions of the constitution and we only need one so there’s going to be averaging out and compromise here and there and that’s inevitable but I can assure you it will have something for everybody.
Guma: Now Butholezwe Nyathi on FaceBook sent in his question saying when roughly are we likely to have a referendum. We’ve had so many probable dates being announced, we are now confused.
Majome: I would say, it’s for the draft, who is it?
Guma: A referendum. When are we likely to have a referendum? It’s Butholezwe Nyathi
Majome: Okay, I would say to Butholezwe Nyathi please don’t listen to any date that announces that a referendum will be on Saturday because it’s not possible to give, to forecast a date with precision. This process is dependent on, it’s always dependent on how long a stage takes so it’s not helpful to try and say on this date because nobody really knows, it will be a guessing exercise and it’s not really helpful.
But what I would urge him to, you know we are, what I can say we are at the final stages of the drafting process and when we then finish, we are going to conduct like update meetings, hopefully in the provinces, initially in the provinces we will get back to Zimbabweans and report to them what we have done and we will have treated the draft in Shona, English, Ndebele, in Venda, Tonga and in all the other languages that we use in outreach and Braille as well.
And then we’ll hold the second All Stakeholders Conference and so that representatives of civil, civic groups can come and as well as whoever is interested in the constitution be represented there and come and air their views so that possibly they can influence changes to the draft as it will be then.
And that process takes time, you know you can’t organize something like that like in a week or two weeks. It’s a massive conference where maybe up to possibly 4,500 people will converge from all over Zimbabwe and then after that you see, the process after the Second All Stakeholders conference, it needs, the draft will then need to be reworked to incorporate any changes.
After that happens it will go to parliament for debate and Article Six of the GPA says parliament must debate it within a month and then after that it must be gazetted in the government gazette and gazetting is six months as well and after that it comes to a referendum.
Guma: Now of course Jessie, all this might come to nothing because we are hearing reports that Zanu PF wants to dump this process and in fact the Zanu PF controlled media has already launched a crusade to have COPAC disbanded and have the draft constitution thrown into the dustbin.
Is this what’s happening? What are you hearing?
Majome: Yah if you read in there, there are a lot of talk and a lot of opinions in the media, in the private and the public media. There are some who think and some who don’t think so. But I think Lance, you and I know that this country is not ruled in the Herald or in the Sunday Mail or in the Daily News or whatever paper.
You can’t run you know a country or a process is not run in the press and in the media. So media reports are, you know look people have the democratic right to say what they think about the process, I can assure you this process is definitely, it’s working very well, it’s well on course and it is working very well.
I don’t, I cannot speak for Zanu PF and say they are going to pull out of the process. They can, only they can speak for themselves, it’s their democratic right to do so but as far as right now, they are in the process, they haven’t come out of it, they haven’t, you know, it’s not a Zanu PF, like I said, MDC, MDC_T process, it’s a tri-partite arrangement this and it’s going on, and it’s going on.
And that’s why what you are doing Lance is very important, to speak in the media, to increase more outlets for discussing this information so that all the different voices can be heard; those who don’t want it can continue to be heard, it’s their democratic right. Those who don’t want it can also speak and those who want to make up their minds and get information, this is exactly what we should do.
This is a peoples’ process, it is not a, like I said, like a journalist or a columnist process, it’s carrying on, it’s being done in terms of the standing rules and orders of parliament and we are going to present our report to parliament including the draft.
Guma: Well Zimbabwe, that’s lawyer Jessie Majome, who is the chairperson of the sub committee on Information and Publicity in COPAC. She is also the Deputy Minister of Women’s Affairs and she joined us tonight on Question Time to answer questions sent in by SW Radio Africa listeners.
Jessie, thank you so much for your time.
Majome: You are welcome. Please continue to be interested in the process and participate in the referendum.
To listen to the programme:
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