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Legally no changes should be made to the draft and Minister Matinenga is on record confirming this. Where any changes are countenanced, they can only be effected during the first reading of the Constitutional Bill in Parliament.
What raised eyebrows is the fact that the surreptitious changes dovetail with Mr Matinenga’s party agenda to defer harmonised elections to way after the demise of Parliament which is midnight, June 29.
Among the scandalous changes were amendments to Schedule Six Part 2 of the Constitutional Bill which relates to the holding of Parliamentary elections following the expiry of the current Parliament.
The changes effectively nullify clause 158 of the Constitutional Bill which stipulates, under 158(1)(a), that “a general election must be held so that polling takes place not more than 30 days before the expiry of the five-year period (of the life of Parliament) specified in section 143”. The tenure of the Seventh Parliament ends at midnight on June 29 by which time a new Parliament should have been elected.
The changes, that were reportedly made by some members of the Copac management committee, were effected through alterations to Part 2 of Schedule Six of the gazetted draft under section1(e) that reads “this schedule together with Chapter 7, relating to elections, except Sections 158, 160 and 161’’ shall come into operation on publication day.
Eyebrows were raised over the inclusion of sections 160 (number of constituencies and wards) and 161 (delimitation of electoral boundaries) which the experts said was immaterial as they will not be affected by the amendments since they are covered by subsequent provisions and putting them alongside Section 158 was diversionary.
Minister Matinenga confirmed the changes last night and defended them saying they were necessary.
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“What was changed does not deal with what is happening now, but the future. The life of the current Parliament ends in June and we cannot have a constitution that says the elections should be held on June 29 . . . That is why these corrections were made,” he said.
Constitutional law expert and National Constitutional Assembly chairman Professor Lovemore Madhuku said changing the contents of the draft constitution without the consent of President Mugabe and Zimbabweans who endorsed the draft was wrong.
“I am aware that they have made a number of changes to the draft constitution. These people are capable of doing anything. It’s wrong, they were supposed to go to Parliament with a document they put to referendum. They are completely wrong,” he said.
Prof Madhuku said the answer to the resultant mess was political.
“The person who matters in this case is the President. He is the one who told them to take the draft constitution to the people and what goes to Parliament is what came from the people. So the person who should deal with that is the President. If Parliament continues to debate that document, it will be debating a wrong draft constitution. Some people have to take them to court,” he said.
A senior member of the Law Society of Zimbabwe who declined to be named for professional reasons, said what was done was illegal and could be challenged in the courts.
“This is a blatant attack on the will of the people expressed in the referendum and a shocking abuse of the Global Political Agreement and Parliament, which is the only body with the authority to make amendments after the referendum.
“(Minister) Matinenga’s suspension of Clause 158 through the back door is corrupt in that it is specifically designed to pre-empt the holding of the elections before the expiry of the term of the current Parliament at midnight 29 June. The argument that this has been done because there is no time is not only false, but it is also sinister because its application is selective and is only limited to Clause 158 and not the whole of Chapter 7, let along the other Chapters which will come into effect together with Schedule Six on the date of publication of the new Constitution.
“The inclusion of Clauses 160 and 161 is pure-trickery because clause 5 of Schedule Six makes it clear that existing constituency boundaries will be maintained as there would be no new delimitation of constituencies,” the LSZ member said.
Legal experts said the changes had the effect of killing current debate that the elections should be held before June 29 as Section 158 that provides for that would immediately fall away.
What is surprising about the changes, the experts said, was that they sought to pre-empt the two applications made by President Mugabe in the High Court seeking an extension of the March 31 by-election deadline to June 29 by which time harmonised elections should have been held.
The application was deferred to Wednesday after Prime Minister Morgan Tsvangirai filed an application to be included as a respondent in the proceedings.
The MDC formations are pushing for the election to be held by October, and Mr Tsvangirai’s application was seen to be an attempt to buy time pursuant to that objective.
leeroy
Online Reporter