CONSTITUTION WATCH 1/2011
[13th March 2011]
Constitution-Making Process Update
Select Committee Co-Chair’s Three-Week Incarceration Delays Process
Arrest of COPAC MDC-T Co-Chair Hon Douglas Mwonzora MP: On Tuesday 15th February Mr Mwonzora was arrested outside Parliament as he was leaving after that afternoon’s sitting. He was detained overnight in police cells at Rhodesville Police Station and removed to Nyanga the following day. There he was taken to the remote Nyamaropa police post and when his lawyers eventually traced him there, they were denied access to him. He and 22 co-accused were eventually taken before the Nyanga magistrate on Friday 18th February for remand on public violence charges. These charges were based on clashes between MDC-T and ZANU-PF members in Mr Mwonzora’s Nyanga North constituency the previous weekend, following a meeting addressed by Mr Mwonzora. Police took action against MDC-T supporters only. The magistrate granted Mr Mwonzora and all the other accused bail on Monday 21st February, but the State prosecutor immediately invoked the notorious section 121 of the Criminal Procedure and Evidence Act, giving notice that the State intended to appeal to the High Court against granting of bail and thereby suspending the magistrate’s bail order for seven days.
State’s Appeal against Bail Delayed – but Eventually Dismissed: The State’s appeal was lodged within the prescribed seven-day period, further suspending the bail order. The appeal hearing was to have been on Monday 7th March but it was postponed to Wednesday 9th March after presiding judge Justice Mavangira discovered defects in the record of proceedings in the magistrate’s court and insisted that they be put right before the hearing continued. The hearing resumed on Wednesday, continued on Thursday, and on Friday the judge dismissed the State’s appeal, thereby confirming the magistrate’s order granting bail. But it was not until late Saturday morning that Mr Mwonzora and the others were eventually released from Mutare Remand Prison. They had been in custody for 24 days in total.
Effect on COPAC Programme of Mr Mwonzora’s Absence
Given the consensus basis on which the co-chairpersons and COPAC have operated since the beginning of the constitution-making process in 2009, and his deep involvement since Day 1, Mr Mwonzora’s absence from COPAC has inevitably had a profound effect on COPAC’s work. Mr Mwonzora’s deputy, Senator Gladys Dube, stood in for him during his absence, but was necessarily handicapped by not having been involved at co-chair level in certain vital discussions. The only outward sign of activity during the three weeks of Mr Mwonzora’s absence at the pleasure of the State was a two-day workshop, 28th February and 1st March, to plan the forthcoming work of the thematic committees and insiders reported that the workshop suffered from his absence. His absence also led to the postponement of the resumption of the exercise to complete the uploading and collating of the data from the outreach process, which was to have started on 7th March but was put off until 10th March in the expectation that by then Mr Mwonzora would be at liberty once again [in the event it went ahead on the 10th without him.] This has had a knock-on effect, setting back the start of the next phase involving the Thematic Committees [see below].
Yesterday’s Release Allows COPAC Programme to Proceed
Mr Mwonzora’s release means that he can resume his duties as COPAC co-chair, and he did so today, 13th March. It also avoids a possible crisis in the constitution-making process. Despite COPAC’s ZANU-PF co-chair Mangwana saying last week that the process could go on without Mr Mwonzora, it is unlikely that MDC-T would have accepted for much longer the position in which its chosen co-chair was prevented from carrying out his assignment by further detention on charges which the party has from the start dismissed as trumped up for political reasons.
Stage Now Reached
The Public Consultation/Outreach Completed
The last outreach meetings were held at the end of October last year; these were the meetings in Harare, Chitungwiza and Ruwa that had to be re-scheduled because of violence and disruptions during the first attempt. There was talk of an additional outreach exercise to prisons – but this was abandoned. It was expected that the next stage – the uploading and collating of the data from the outreach meetings – would start in November, soon after the final meetings but there was a hiatus until January. This was partly explained by the resumption of Parliament for the Budget sittings and the Christmas holidays. Also, COPAC claimed shortage of funds – the outreach had cost more than expected.
Data Uploading and Collating Stage Partially done – Now Nearing Completion
During the outreach process, data was captured for each and every meeting in three ways —
- In written form on computer [this was done by the rapporteurs who produced daily reports, agreed with the outreach team members, on the day’s proceedings]
- on video recordings
- on audio recordings.
[Note: The video and audio recordings were made as back-up, to ensure that the correctness of the written record could be verified if disputes arose as to what had actually been said by the people at a particular outreach meeting.]
Outreach teams visited every ward in the country – there were nearly four thousand meetings. At each meeting the public’s opinion was invited by putting questions covering the 17 themes which had been decided on to get constitutional content, and the rapporteurs’ reports reflected the responses given, themes by theme. After the outreach the accumulated data from all the meetings had to be entered onto a giant server and processed into a form in which it could be used by the thematic committees to prepare their reports for the drafters on what the people wanted the constitution to say about each of the thematic areas. COPAC dubbed this the “data uploading and collating stage”.
Data uploading and collating eventually got under way from 11th to 25th January, in a central Harare hotel. UNDP provided the necessary technical assistance. Those involved included the rapporteurs who had serviced the outreach teams [three rapporteurs to each team] and 70 technicians. The outreach team leaders were also present to verify that the information being uploaded was the same as that they had agreed on when the reports on the meetings were compiled in the field. The work was carried out under the supervision of the Select Committee.
Some Re-uploading Necessary On 27th January COPAC, while rejecting press reports that its system had been tampered with and a substantial amount of data lost, acknowledged that certain data had not been successfully captured on the giant server. The data, however, was still intact on individual computers. It was therefore necessary for COPAC to engage an additional technical expert to troubleshoot and rectify the problem. This was completed by 21st February, leaving the way clear for the completion of the data uploading and collating process – i.e., the re-uploading and collating of the material not captured on the giant server the first time round in January. It was estimated this task would take 3-5 days.
Re-uploading Started Thursday 10th March Originally scheduled to start on Monday 7th March, the re-uploading exercise was postponed to 10th March to allow for Mr Mwonzora’s expected return to duty on that day, but went ahead even though he was still in custody. It is estimated that re-uploading will be completed on Monday 14th March. Mr Mwonzora managed to rejoin his colleagues today.
Monitoring of Data Uploading
Civil Society Monitors Not Present during the Process At the beginning of the constitution-making process, civil society stressed to COPAC the need for the whole process to be transparent if the end result was to be acceptable. One of the points made was that the raw data from the outreach process should be made publicly available to enable civil society organisations and other interested parties to carry out independent checks on the data. [See Constitution Watch 3 of 15th June 2009.] Allowing civil society observers or monitors to be present during the uploading and collating process would have promoted transparency, but COPAC has not allowed this, thereby losing a good opportunity to demonstrate the reliability of the process.
If monitoring had been allowed, it might have helped put the public’s mind at rest about the integrity of the outreach data. During the waiting period between the end of the outreach and the start of data uploading, public unease was caused by press reports that the integrity of the data had been compromised by COPAC’s failure to store it in suitably secure conditions after it reached the COPAC offices. There were also reports that during the uploading at the hotel in January the system had been hacked into and data lost or changed. COPAC has rejected all allegations of inadequate security and insisted that no outreach data has been damaged or corrupted or lost.
Next Stage – Thematic Committees
COPAC will meet on 14th March to decide on the starting date for the next stage – the Thematic Committees meetings to analyse the data from the outreach process and prepare their reports for the drafters. At a press briefing on 11th March COPAC declined to be pinned down on a starting date for the thematic committees, but promised to announce the exact composition of the committees and their working timetable in due course. As getting the 425 Thematic Committee members and support staff together will obviously call for considerable organisation, it unlikely that the committees will start work before the beginning of April. As yet COPAC has given no indication how long this stage will last. Minister of Constitutional and Parliamentary Affairs Matinenga has given an assurance that the Ministry of Finance has provided COPAC with sufficient funds to cover the work of the Thematic Committees.
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