CONSTITUTION WATCH 2012
[3rd September 2012]
What is the Future of the COPAC Draft Constitution?
ZANU-PF have rejected the COPAC draft constitution They have produced a redraft of it which has altered the COPAC one to such an extent that it may as well be called the ZANU-PF constitution. [Veritas distributed the re-draft as an attachment to Constitution Watch of 24th August – if any one missed this and wants a soft copy email email@example.com.]
Both MDCs have rejected the “ZANU-PF Constitution” President Mugabe handed copies of ZANU-PF’s re-draft to the principals Mr Tsvangirai and Professor Ncube, after the Cabinet meeting on 21st August. Both MDC groupings were quick to reject the ZANU-PF document and the idea of further negotiations on the COPAC draft. They have reiterated their statements that the COPAC draft was signed by all party negotiators and that they are committed to the COPAC draft.
Impasse unresolved The ZANU-PF Politburo confirmed its endorsement of the ZANU-PF re-draft at a meeting on 25th August. It was now, said ZANU-PF spokesman Rugare Gumbo, up to the principals to decide the way forward. But the MDCs have said they have compromised enough during the COPAC process. Mr Tsvangirai for MDC-T said “to open the draft constitution debate now is like opening a floodgate, for once you start you will never know where to stop”. Prof Ncube spoke more strongly: “I am astonished at the sheer scale of disrespect, contempt, insult and audacity exhibited by the amendments.....In fact, the draft is not just an insult on us but is also a mockery of the people who took time to make representations to COPAC.....There is no way we could ever accept those amendments. Anyone who does so would be committing political suicide.” He went on to interpret it as a ploy by ZANU-PF to go for early elections.
And the impasse continues unresolved.
The SADC Factor
President Zuma’s facilitation team was in Harare on 28th and 29th August, and met the three party negotiating teams separately on the 28th before a joint meeting on the 29th. The MDC negotiating teams maintained their position that they were not prepared to have further negotiations over the COPAC draft. ZANU-PF would not budge from its position that insisted changes to the COPAC draft could still be made at the level of the party principals. The MDC teams declared a deadlock and invoked the recent SADC Summit resolution requiring intervention by President Zuma, as the SADC Facilitator, and President Kikwete of Tanzania, as chairperson of the SADC Organ on Politics, Defence and Security Cooperation, in the event of difficulties arising over the constitution. They were requested to confirm this in writing to President Mugabe. Talk of an imminent visit by the two Presidents is premature until the principals have met over the present impasse.
Any Chance of Further Negotiations
Mr Tsvangirai has suggested that the position might have been different had ZANU-PF questioned only one or two issues. This may be seen as leaving some space for consideration of more modest changes to the COPAC draft in discussions at the level of the GPA party principals – for example, the removal of the presidential running-mates provision from the COPAC draft in return for ZANU-PF’s abandonment of what the other parties have described as its outrageous and insulting rejection of the draft’s provisions on presidential powers, devolution, etc.
In fact the principals have not yet met to discuss the issue. The principals usually meet on a Monday, but the President was out of the country on Monday 27th August, having left the day before on his way to the Non-Aligned Movement Summit in Teheran. And it is not yet clear whether he will have returned in time to be available for a meeting on Monday 3rd September. The impatience of SADC leaders for progress on the constitution, as shown by the resolutions adopted at the Maputo Summit on 18th August, is likely to be a major factor in the principals’ discussions.
Comment: As the GPA set up a Parliamentary process to produce a new constitution, correctly it is COPAC that should have the last say [and they have already signed off on the COPAC draft], rather than the principals.
Meanwhile MDC-T Announce YES Campaign for COPAC Draft
Start on 8th September
On 30th August Mr Tsvangirai told leaders of civil society organisations that MDC-T would, starting 8th September, be campaigning to inform the people about and seek their support for the COPAC draft constitution.
Comment: It is puzzling why the MDC-T have made this decision. In statements endorsing the COPAC draft after its release, both MDC parties made it clear that the draft was a less than ideal compromise document, and that each of them had made concessions to permit a consensus to be arrived at between the three parties. Why, then, has the MDC-T chosen to run with the COPAC draft when it contains provisions with which MDC-T is not happy? If ZANU-PF feels free at this late stage to push for what it really wants, why shouldn’t they come up with their own draft constitution putting back what they surrendered during the long drawn-out negotiations at Management Committee level, from the Nyanga Retreat in June to the initialling of the COPAC draft in the early hours of 18th July?
More than One Draft for the Referendum?
The possibility of submitting two drafts – COPAC’s and the ZANU-PF re-draft – has been mentioned by President Zuma and others. ZANU-PF spokesman Rugare Gumbo said on 29th August that ZANU-PF was against the idea of taking both the COPAC draft and the ZANU-PF re-draft to the Referendum. In fact, in terms of the Referendums Act there is no reason why two or more drafts should not be put to the vote, but it would be impractical for other reasons [see below]
Fear of Referendum Violence
There is a growing fear that if ZANU-PF go for a NO vote and MDC-T for a YES vote, or if ZANU-PF and MDCs [and anyone joining in] are rallying supporters to vote for different drafts, the Referendum would become a party popularity contest and likely to be accompanied by the same degree of violence and intimidation that characterised the 2008 elections.
In Fact No Party Can Go It Alone
If ZANU-PF remains opposed to any draft but their own, the reality is that even it the MDC-T could garner enough support for a YES vote for the COPAC draft [or their own draft], it would probably be pointless. A YES vote in the Referendum is not the final stage in the constitution-making process. The new constitution needs to be passed by two-thirds majorities in both Houses of Parliament. Neither grouping alone has a two-thirds majority in the House of Assembly nor the Senate. It is unlikely that MDC-T would persuade a two-thirds majority to vote with them. And then it has to be signed by the President [ZANU-PF] for his assent.
COPAC Activities Still Stalled
COPAC’s preparations for the remainder of the constitution-making process are still stalled pending a resolution of the impasse that has followed the production of the ZANU-PF re-draft. Translation and printing arrangements continue shelved, as do other preparations for the Second All Stakeholders’ Conference. This is because all important decisions require consensus among the parties, something that is not possible as long as the impasse continues.
Still No Publication of National Report
Discussion of issues surrounding the draft constitution continues to be hampered by COPAC’s failure to publish the national report on the Outreach process. ZANU-PF claims that the COPAC draft constitution published on July 18 ignores views of the people gathered during the national outreach programme and contained in the national report, and that amendments made in the party’s re-draft used the national report as a yardstick. But both MDCs have said the COPAC draft expresses the people’s wishes and the ZANU-PF re-draft does not. ZANU-PF has challenged COPAC to make the document public.
It would clarify the issues and be of interest to the public if COPAC made the national report available, but COPAC seems to be avoiding the issue. Jesse Majome, COPAC’s spokesperson [also MDC-T Secretary for Constitutional and Parliamentary Affairs],
has dismissed as nonsensical ZANU PF’s call to make public the COPAC national report. She insisted: “There is nowhere in the GPA where it says after the process you release the national report. Article 6 of the GPA is clear on the functions of COPAC. And in any case, the Select Committee is answerable to Parliament and that body has not demanded such action from us.” [Comment: This statement seems to invite an interested Parliamentarian to make such a request.]
Does a complete national report really exist? COPAC has mentioned in the past both a statistical report and a narrative report, so a complete national report should include both. COPAC has also said it would make it available at the end of the process. If it exists, why not just make it available now? ZANU-PF has said it will publish the national statistical report itself, but has not yet done so. There is a natural suspicion, because of lack of a clear methodology, and the constant arguments about quantitative data and quantitative data during the collation of the analysis of the public consultations, that there is in fact no narrative report. [Comment: Considering all the other “leaks” from the process, surely if it exists it would have been “leaked by now”?]
Some months ago ZANU-PF supporter Goodson Nguni said he proposed suing COPAC to get a High Court order forcing COPAC to release the national report. So far no court papers have been served on COPAC.
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