Copac makes changes to initial draft constitution

Some of the information that found its way into the draft includes the contentious clauses on presidential term limits and “natural differences”.
Some observers claim some of the stakeholders wanted to manipulate the clause on “natural differences” to promote same sex marriages.
A clause on land reform that had been left out of the new draft was finally included.
The three Copac co-chairpersons confirmed the changes yesterday adding they had reviewed six of the 18 chapters of the draft supreme law.
The team started working on the remaining chapters yesterday and expects to complete them in six days.
Copac co-chairperson, Cde Munyaradzi Mangwana, yesterday said the information added by the drafters was completely divorced from the Copac instructions.
He said the drafters had done a “shoddy” job as they had invented their own ideas and “smuggled” them into the draft constitution.
“Of the six chapters we have reviewed, we have made a lot of changes because we have discovered that the drafters had ignored what we instructed them to do and 70 percent of their content was their own invention,” he said.
“We have evidence to prove they were careless with their job and we had no option but to make plenty of changes. No one is allowed to digress from the views of the people and put what he thinks is right for the people.”
Constitutional and legal experts yesterday said in drafting a supreme law, drafters should not add or subtract anything and should operate according to Copac guidelines.
Constitutional lawyer Professor Lovemore Madhuku said: “There is no general rule governing the work of the drafters but drafters should work according to what they would have agreed with those who sent them.
“In this case it depends on what they agreed with Copac and no one knows what they agreed on.”
A legal expert, Mr Farai Mutamangira, said the constitution belongs to the people and ultimately the people have the final say.
He said the more the drafters drift away from the views expressed by the people during the outreach programme the more the whole exercise becomes work in futility.
“The drafters must also not forget that their authority to draft the Constitution is not founded in law. It is founded in a political agreement which does not bind the electorate at all,” said Mr Mutamangira.
“The first hurdle that the parties to the GPA must cross is to produce a draft constitution acceptable and agreeable to themselves. Should for some reason the constitution-making process fail, for instance for lack of agreement between the parties, such failure will not have any constitutional consequences on the current constitution, nor will it have any legal consequences on the elections. The process will die a natural death.”
Another legal expert, Mr Aston Musunga, added: “The drafters have a contract with the select committee and should not operate outside agreed guidelines. The drafters should also work using the national report. They should not add or subtract anything because what is needed is a people-driven constitution, not a drafters’ constitution.
“If we wanted them to write a constitution for Zimbabwe, we would have just called the three of them and neglected the processes we had, like the first all-stakeholders conference and the outreach programmes.”
Professor Jonathan Moyo, who was a member of the Constitutional Commission of Zimbabwe in 1999, said a draft constitution was owned by the initiator, not the drafters.
“There is no drafter who owns the product of what he or she is drafting,” he said.
“The draft is owned by the initiator who gives instructions to the drafters and they should draft according to instructions.
“The Constitution Commission owned at all times the work and its outcome and the ownership is never surrendered to the drafters.”
He said Copac had “capitulated” the ownership to the drafters. “This is what has happened in Copac. Either they have not given adequate instructions to the drafters or they have not given them at all. Any gray areas or gaps should be filled by the owner of the draft, not by drafters. This is a situation where we have a house owner giving his bedroom to his maid for cleaning. A maid should just clean the bedroom and not use it.”
Dr Charity Manyeruke, a lecturer in the department of International Relations at the University of Zimbabwe, said the new constitution process lacked transparency.
“The drafters should not write what they think but what they have been told to write,” she said.
“They are given clear terms of reference and their job is to put constitutional principles, language that goes into the supreme law guided by the select committee.
“The problem with our constitution is lack of transparency. You should not hide with a people’s constitution because it’s not yours. Operate in public and the nation knows where we are heading  because we end up having issues, not from the people, being smuggled into the constitution.”
Cde Mangwana said they had reviewed and rectified the clause on the executive.
“The qualification clause which comprises of the Presidential powers had been tampered with by the drafters but we have rectified everything,” he said.
“This means that what the drafters had put is immaterial and this clause does not in any way affect our President.”
Under the new constitution, he said, a President should be above the age of 40, be a Zimbabwean citizen and will serve two five-year terms.
Cde Mangwana added: “We have also removed the issue of natural differences and scratched things like homosexuality. We have also included the issue of land reform — that it is irreversible — and have also agreed that all land taken during the land reform is now State land.”
MDC-T co-chairperson, Mr Douglas Mwonzora, admitted making the changes to the six chapters.
“We had stated that what was published was not the final document and it was bound to be changed,” he said.
MDC co-chairperson, Mr Edward Mkhosi, said: “We corrected the draft by looking at what came out of the outreach. We reached consensus on a number of major issues though there are certain things that need agreement.”