CONSTITUTION WATCH 16/2010
[2nd August 2010]
Civil Society Monitors/Observers
In January the Zimbabwe Election Support Network [ZESN], the Zimbabwe Peace Project [ZPP] and the Zimbabwe Lawyers for Human Rights [ZLHR] launched ZZZICOMP, a joint project undertaken by the three named organisations to monitor the constitution-making process led by COPAC [the Parliamentary Select Committee on the New Constitution]. In mid-June, just ahead of the commencement of the outreach process ZZZICOMP announced the deployment of 420 monitors to monitor the process, saying ZZICOMP’s aim was “… to objectively monitor, observe and report on the work of the Constitution Parliamentary Select Committee (COPAC), the public outreach programme, the work of the Thematic Committees and the Drafting Committee, and the final document produced in order to adjudge how democratic and transparent the constitution-making process is, and if it accurately reflects the input of broad and diverse popular participation.” [Full text of ZZZICOMP statement available on request.]
Shortly after the outreach meetings started on 23rd June controversy arose over whether ZZZICOMP monitors should be allowed to monitor meetings. On the ground, according to reports, ZZZICOMP observers ran into trouble with both police and party activists. Two were arrested for the non-existent crime of practising journalism without being accredited journalists. Others were assaulted by party youths. Another five observers were arrested by the police but later released into the custody of their lawyer without being charged with a crime.
One of COPAC co-chairpersons, Mr Paul Mangwana, was reported to have said: “These people from non-governmental organisations must be arrested. They are peddling lies about the process …. why should we be monitored? We believe they have a hidden agenda to tarnish the process.” And his fellow co-chairperson, Mr Douglas Mwonzora, was said to have agreed that the monitors were “disseminating falsehoods” about the outreach process. Mr Mangwana was quoted as claiming that only the three political parties that signed the Global Political Agreement [ZANU-PF and the two formations of the MDC] had the prerogative to monitor and comment on the outreach programme.
Difficulties with COPAC smoothed over: On the 7th July COPAC and civil society met and reached an accommodation on the position of observers and COPAC agreed that observers may attend all outreach meetings [see further below]. For the record, however, we set out below a legal opinion on civil society’s rights vis-à-vis monitoring the outreach process.
Legal Opinion on Civil Society’s Right to Monitor/Observe the Outreach Process
Should monitors from civil society organisations be allowed to attend and monitor the outreach meetings?
The GPA: When the three political parties signed the GPA they committed themselves to:
- respecting the rights of all Zimbabweans … to … participate in all national programmes and events freely without let or hindrance [preamble of the GPA];
- ensuring that the constitution-making process must be owned and driven by the people and must be inclusive and democratic [Article 6, preamble];
- setting up a Select Committee of Parliament 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 [Article 61[a][ii]].
The leaders of the three political parties have therefore undertaken to prepare a new constitution through an inclusive and democratic process in the course of which public meetings and consultations are to be held. These meetings and consultations are “national events” which the party leaders have acknowledged all Zimbabweans have a right to participate in without let or hindrance. And if the party leaders who signed the GPA are bound by it, then it can be argued that their representatives on COPAC must also comply with it.
So do monitors from civil society have a legally an enforceable right to attend public meetings held by COPAC in order to report on the outreach process? The answer is probably not, despite the provisions of the GPA.
The Constitution: The present Constitution [section 21] guarantees freedom of assembly and association, i.e. the right to assemble freely and associate with other people. It does not, however, compel organisers of gatherings and meetings to allow in anyone who wants to attend. Indeed, the Constitution expressly states that freedom of assembly and association includes the right not to belong to an association, while internationally it has been recognised that freedom of assembly by its nature protects the individual from coercion to join an assembly. Conversely, the freedom must also protect organisers from having to accept unwanted observers and monitors into their gatherings.
It is true that the GPA states that COPAC must hold “such public hearings as it may deem necessary”, but this does not mean that everyone must be allowed to attend the hearings. COPAC has deemed it necessary to hold a large number of local meetings throughout the country, and it is perfectly entitled to restrict attendance at those meetings to people from the localities concerned. A meeting can be regarded as “public” even if attendance is limited to people living in the vicinity.
The need for independent observers: But even though COPAC may be entitled to exclude civil-society monitors from their meetings, it would be most unwise to do. The constitution-making process must be open and democratic, if it is to produce a constitution that is genuinely acceptable to the majority of the people. If ZZZICOMP’s observers are not allowed to attend public meetings at which people are allowed to express their views on the new constitution, there will be no independent assessment of whether any draft produced by COPAC truly reflects peoples’ views. Any attempt by COPAC or others to prevent such an independent assessment will create a very real suspicion that the process is being rigged to serve narrow political interests.
Attendance as monitor not an offence: One final point to note is that it is not a criminal offence to attend a meeting with the intention of monitoring its proceedings, particularly if the meeting is supposed to be a public one. Therefore no-one should be arrested merely for attempting to attend a meeting as an observer/monitor. If a person refuses to leave a meeting when asked to do so, and his or her refusal is likely to disrupt the meeting or cause a breach of the peace, then that person may be guilty of an offence; but mere attendance does not amount to a crime.
The Agreement Reached between COPAC and Civil Society
After the disturbing press reports mentioned at the beginning of this bulletin, the air was considerably cleared at the meeting between civil society representatives and COPAC on 7th July. The COPAC co-chairs said they had been the victims of misreporting, and assured civil society that, contrary to what had been reported in the media, COPAC remained “fully committed to the engagement of civil society in this programme”. But they also said there had been problems in at least one province with people masquerading as civil society monitors and disturbing the process, and they insisted that some sort of accreditation was required to enable both parties to distinguish genuine monitors from bogus ones.
Points of agreement:
- It was agreed that “Civil Society was free to deploy observers to observe the Constitution making process. All personnel on the ground would co-operate as much as possible with these observers. The total number deployed would be made known to COPAC. All observers would be issued with accreditation cards to identify them as such in the event of enquiry.”
- A Code of Conduct for Observers was drafted and agreed on; every monitor would sign this Code. [Code of Conduct available on request.]
- Access to COPA leadership: Civil society would be free to approach COPAC leadership on areas of concern, and COPAC would hold weekly briefings with civil society, including human rights and religious organisations. Political parties not represented in Parliament would also be invited to the briefings.
What is Happening Now re Monitors
Accreditation: 450 observers nominated by civil society organisations have been accredited and have been issued with accreditation cards by COPAC.
Briefings: As agreed, COPAC holds briefings every Wednesday afternoon at 2.30 pm at which COPAC updates NGOs on the progress of the outreach and NGOs in turn are able to discuss problems and complaints with COPAC. COPAC co-chairs have undertaken to follow up complaints about treatment of observers, as long as sufficient details are given.
ZZZICOMP’s Report for the period 1st to 12th July records that “Although isolated incidents in which ZZZICOMP observers are denied access to some outreach meetings are still reported, the period under review has in the main experienced some warming in relations between ZZZICOMP and COPAC.” Incidents reported included observers being barred from a few outreach meetings by local political leadership and detention by police. [Electronic version of full ZZICOMP report available.]
Difficulties experienced by observers: Instances are still being reported of difficulties experienced by accredited observers notwithstanding their official recognition by COPAC. Local political leaders and activists have succeeded in barring observers from some meetings on the ground that they are not local residents.
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied