Constitution Watch 22-2012


[19th November 2012]

Deadlock Post Second All Stakeholders Conference

COPAC Select Committee Report on the Conference

After preparatory work by rapporteurs and COPAC staff and the co-chairs and a preliminary meeting, the Select Committee met on 5th and 6th November to finalise its report on the Conference.  Completion of the report was announced at a press briefing on the morning of 7th November.  The report has not been released, but it was described in the press release signed by the three COPAC co-chairs as a document in four sections, as follows:

  • an analysis of the Conference, covering the composition of delegates and the terms of reference they were given, and an outline of the Conference proceedings
  • the areas where delegates did not recommend changes to the COPAC draft
  • the areas where group reports record changes that were recommended by a delegate but do not indicate whether the group agreed or disagreed on the recommendations
  • a list of the areas where group reports record changes that were recommended by delegates but indicate that the recommendations were not agreed to by the group – this section highlights the different recommendations made and cites the arguments put forward for and against them.

The co-chairs said the report would be submitted to the Management Committee, whose input to “the process so far has been invaluable”.  

COPAC Report Submitted to Management Committee

The Management Committee – the GPA negotiators, the Minister of Constitutional and Parliamentary Affairs and the COPAC co-chairs – received the Select Committee’s report at a meeting on 8th November.  The upshot was a decision to return the report to the Select Committee for supplementing, retuning and refining, to include the speeches made at the Conference opening ceremony, the narrative report given to the Conference by the co-chairs and explanatory notes on the meaning of certain figures.  The revised report was sent back to the Management Committee. 

Management Committee Deadlock

The Management Committee met to discuss the revised report on Monday 12th November.  It agreed that inputs from the Conference on which there was reported agreement should be “factored in” to the COPAC draft, but did not reach any agreement on the areas of disagreement [basically those raised by the ZANU-PF amended draft after the COPAC draft had been agreed and signed by all the party negotiators [virtually the Management Committee].

Neither could the Management Committee agree on the way forward.  Consistent with President Mugabe’s remarks at the Conference and when opening Parliament, and a subsequent Politburo decision last week [see below]; the ZANU-PF members wanted the report sent to the party principals to negotiate the suggested recommendations and amendments which had not been not agreed to by the Conference or the Management Committee.  These are essentially ZANU-PF demands for significant changes to the COPAC draft. 

Both MDCs said no to sending the draft to the principals for the final say, maintaining that the next step in what is a Parliamentary process must be for the Select Committee to present the COPAC draft with agreed changes to Parliament, without intervention from the principals. 

Comment: It has never been clear however from the GPA whether the Parliamentary stage in the constitution-making process allows for Parliament to change the draft.  If it is debated and changes are proposed, then the argument between the COPAC draft and what ZANU-PF want amended will just be passed up the line to Parliament as a whole instead of to the principals [see quote from GPA below]

Will the Constitution be finalised by Parliament or the Principals?

Pro Parliament

MDC-T  At the opening ceremony of the Stakeholders Conference Prime Minister Tsvangirai took care to say that the constitution-making process is a Parliament-driven process in which the Principals and the Executive must play a minimum part.”

MDC negotiator and Management Committee member Priscilla Misihairabwi-Mushonga has said the MDC position was that the principals had no role in the constitution-making process because they were already represented by the Management Committee.  “COPAC has produced a draft and it should be taken to Parliament together with the report of the conference.”

Pro the Principals

The President At the Conference opening ceremony President Mugabe made it clear he believed the principals were responsible for the GPA and therefore the principals should settle the final draft to be placed before voters in the Referendum.  He confirmed this just over a week later when opening the Parliamentary session and exhorting COPAC to –

work frantically to produce a Report of the Conference summarising the views expressed by the Stakeholders, in particular the divergent views, and submit the Report to the Principals in Government who will take the necessary steps to set up an appropriate mechanism to build the required consensus on the way forward, mindful always that our major objective remains the holding of the next Harmonised Elections in March 2013 under a new Constitution ... There is now the need for Government to assume the management of the process leading to the holding of the Referendum.” 

ZANU-PF Politburo On 7th November the ZANU-PF Politburo was briefed on developments by ZANU-PF COPAC co-chair Mangwana.  The Politburo reiterated the ZANU-PF position that it was now for the principals to negotiate the points on which there was still disagreement – largely the changes to the COPAC draft that ZANU-PF has been pushing for since the draft emerged from COPAC in July.

Proposal to Refer the Matter to SADC

There have been previous suggestions from both MDCs that the deadlock over whether the COPAC draft goes forward should be referred to SADC. 

Note: The MDCs position at the Management Committee maintaining that the next step must be for the Select Committee to present the COPAC draft with agreed changes to Parliament, without intervention from the principals, cannot be a final solution.  If ZANU-PF do not get their required amendments they may just take their fight to Parliament or to the country at the Referendum [they have through their spokesman Rugare Gumbo threatened a NO vote at the Referendum if they do not get their new requirements inserted].

Professor Ncube, President of the MDC, reiterated this call recently and called on both SADC and the AU to “break the logjam in the constitution making process”.  He also described the changes ZANU-PF wanted as “their Party manifesto”, not a national constitution, and the many delays as a ZANU-PF ploy to buy time and stage elections without reforms.  SADC as the guarantors of the Election Roadmap, which includes finalisation of the constitution and pre-election reforms, should now resolve the crisis.


What the GPA Says About the Constitution-Making Process

Article 6 of the GPA shows the three GPA parties went to great lengths to make the constitution-making process a responsibility of Parliament as opposed to the Executive-dominated process that is normally followed to produce a new law.  The article assigns no role to the party principals.  [Note: the GPA is an agreement between political parties, represented by their party leaders – not an agreement between three individuals.]

In Article 6 the three parties agree:

“(a)    that they shall set up a Select Committee of Parliament composed of representatives of the Parties whose terms of reference shall be as follows:

  1. to set up such subcommittees chaired by a member of Parliament and composed of members of Parliament and representatives of Civil Society as may be necessary to assist the Select Committee in performing its mandate herein;
  2. to hold such public hearings and such consultations as it may deem necessary in the process of public consultation over the making of a new constitution for Zimbabwe;
  3. to convene an All Stakeholders Conference to consult stakeholders on their representation in the sub-committees referred to above and such related matters as may assist the committee in its work;
  4. to table its draft Constitution to a 2nd All Stakeholders Conference; and
  5. to report to Parliament on its recommendations over the content of a New Constitution for Zimbabwe
  1. that the draft Constitution recommended by the Select Committee shall be submitted to a referendum.”

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