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The process has had to overcome many disruptions since Copac started its work in April 2009. Lack of funding, disputes over the talking points used in seeking people’s views, methodology for gathering, analysing and reporting information and other substantive issues have stalled the constitution-making exercise from time to time, but it appears the stakes are higher this time.
Zanu-PF and the two MDC formations are discussing proposals by the former to amend about 17 sections of the 17 July Copac draft. Zanu-PF is arguing that the clauses need correction as they are contrary to what the people said during the outreach. On the other hand, the MDCs say they will not entertain any amendments before the second all-stakeholders conference.
Mr Peter Nyoni a political analyst said the Copac draft is not worth the paper it is written on because it is not based on people’s contributions but guess work.
“The biggest problem I have with the Copac draft is that it is all guess work by the drafters,” said Mr Nyoni, who was also member of Copac’s outreach team.
“It’s guess work because its contents don’t tally with what was gathered during the outreach and is contained in the national report. You don’t just write what you think and pretend that it is constitutional and reflecting what people want.”
He said he was surprised that both MDCs are refusing to amend the draft on “flimsy” procedural grounds, and not on the basis of substance of the proposed amendments.
“It is a draft and you cannot argue that a draft cannot be changed. Once you say it is a draft, it’s up to the parties to suggest amendments before a final version is written. The Zanu-PF proposals came out of a thorough process and they are saying “this is what we are putting on the table, let’s discuss’.”
The revolutionary party argues that, in its present form, the draft seeks to remove executive authority from the Presidency and scatter it to Parliament and constitutional commissions, rendering the nation’s top job a mere clerical one. Zanu-PF also is suggesting the removal of devolution of power from the draft, giving the liberation struggle a key presence in the draft, introducing black empowerment as a constitutional issue, removal of dual citizenship, explicitly banning of same-sex marriages and dropping of the clause on presidential candidates choosing two running mates.
To consolidate the land reform programme, Zanu-PF wants all beneficiaries of the scheme to be protected against arbitrary dispossession. Zanu-PF also eliminated provisions for the establishment of a Constitutional Court independent from the Supreme Court and also does not want the Attorney General’s prosecuting powers being handed over to a new prosecuting authority.
The party’s first proposed amendment is in Chapter One on the founding values and principles.
The Copac draft reads:
“Zimbabwe is founded on respect for the following values and principles
(a) supremacy of the Constitution; (b) the rule of law; (c) fundamental human rights and freedoms . . .”
Zanu-PF is, on the other hand proposing that same chapter be centred on the liberation struggle as well as putting the supremacy of the people, above that of the constitution.
“Zimbabwe, born out of a protracted war of liberation, is founded on respect for the following values and principles — (a) Supremacy of the people (b) supremacy of the Constitution; (c) recognition and respect of the values and ideals of the liberation struggle.”
On languages, the Copac draft wants 16 languages including Ndau designated as “official” languages but Zanu-PF wants 15 languages excluding Ndau to be “recognised” languages.
“The following languages, namely Chewa, Chibarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, sign language, Sotho, Tonga, Tswana, Venda and Xhosa, are the official languages of Zimbabwe,” the Copac document reads.
“The following languages, namely Chewa, Chibarwe, English, Kalanga, Koisan, Nambya, Ndebele, Shangani, Shona, sign language, Sotho, Tonga, Tswana, Venda and Xhosa are the recognised languages of Zimbabwe,” Zanu-PF suggests.
The revolutionary party also wants the addition of a totally new section in Chapter 2, which deals with national objectives. The Copac draft is silent on that.
“(3) The State must ensure that all institutions and agencies of government at all levels promote and defend the values and ideals of the liberation struggle,” it says.
Another point of difference is Chapter 3, which deals with citizenship. Zanu-PF is suggesting that an Act of Parliament may make a provision for “the prohibition of dual citizenship in respect of citizens by descent or registration,” (Section 3.8 (e) while the Copac draft reads “the prohibition or permitting of dual citizenship in respect of citizens by descent or registration.”
On the controversial Copac proposal to provide for capital punishment on male murderers, sparing women convicted of the same crime from the same penalty, Zanu-PF suggests the removal of the gender perspective to it.
Mr Christopher Nharo Gwatidzo, a lecturer at Midlands State University said Zanu-PF amendments “resonate” with what the people said they wanted included in the supreme law of the land.
“The value system they advance is African — the outlawing of gay rights, upholding of our liberation heritage, consolidating the land reform programme, indigenisation and so on. This is what defines us as a people; fundamental aspects of our being Zimbabwean. These points resonate with what the people want as expressed during the Copac outreach. Whose interests are you serving if you don’t agree with this?”
On Tuesday, MDC-T leader, Mr Morgan Tsvangirai reiterated his party’s position that it would not agree to the new proposals, stopping short of declaring a deadlock. He claimed the principals in the GPA cannot substitute the “sovereign will of the people” yet his party refused to have the national report, containing people’s views as gathered during the outreach, to be published.
“If Zanu PF was bringing one or two issues,” said Mr Tsvangirai, “one would say perhaps it is necessary for the sake of building consensus. I don’t know how we can accommodate Zanu-PF concerns, but I think their reaction to the draft is totally unprogressive. For us, in my party, we will not even open up for any negotiations.”
Mr Nyoni dismissed the remarks as mere grand -standing adding that, in fact, a new constitution reached through consensus between the three GPA parties is in the best interests of the MDCs.
“He cannot speak of a deadlock at this stage,” he said. “There has to be a way out. It’s mere public posturing. We have seen a lot of that. The MDCs do not want the present constitution. It is in their best interests to have a new one.”
Regarding a suggestion by MDC leader Prof Welshman Ncube and Minister of Constitutional and Parliamentary Affairs, Eric Matinenga that the Copac draft and that with Zanu-PF amendments be taken to the referendum simultaneously, Mr Nyoni said the GPA says only one draft must be taken to the people.
“It is worth noting that the GPA had the Kariba Draft but MDC-T repudiated it. If MDC-T can veto Kariba, Zanu-PF can also have a veto this one, if they decide,” he said.
Article Six of the GPA says parties to it agreed on the Kariba Draft on the 30th of September 2007, a document that was supposed to be taken to the people for their analysis and approval. However, MDC-T refused, insisting that a completely new “people-driven” constitution be written. Zanu-PF and MDC agreed to go by this proposal. The parties then launched the Copac process, which has cost at least $45 million and has not been concluded, more than three years on.
“The country has a constitution already,” said Mr Gwatidzo.
“It is the basis on which we can move forward and have free and fair elections. The March 2008 harmonised elections were held under the present constitution and were deemed free and fair, so we can move on. People in MDC-T speak as if we don’t have a constitution and we are in some kind of crisis. We have a constitution and we are not in a crisis.”
Online Reporter