THE Parliamentary Constitution Select Committee (Copac) spent nearly four years and a staggering US$50 million to produce a draft constitution virtually based on the rejected 2000 Constitutional Commission and Kariba documents, especially on the contentious issue of executive powers.
Report by Paidamoyo Muzulu
Since 1997 when the constitutional reform debate gathered momentum, Zimbabweans have been sharply divided over whether the country should have a powerful executive presidency or a non-executive head of state with an executive prime minister.
Some people want a French-style executive arrangement in which power is shared between the president and prime minister.
Under the Copac draft, the president is still the head of state and government and commander-in-chief of the Zimbabwe Defence Forces.
He still enjoys both civil and criminal immunity while in office, and retains powers to dissolve parliament in the case of disagreements between the executive and the legislature over the budget, or if there is a vote of no confidence.
The draft further gives the president power to appoint ambassadors, ministers, judges and independent commission chairpersons. The president still wields the prerogative of mercy and powers to declare war and make peace.
The debate around the executive authority during the Copac outreach, as in the past, has largely been about executive power and President Robert Mugabe’s fate.
Copac officials in their initial draft tried to bar Mugabe from standing for re-election through age and term limits. However, Mugabe and his loyalists fought back and threw that out.
They also forced an overhaul of several drafts produced during the process, including the July 18 2012 one which was supposed to be the final article. In the end, Mugabe recovered his powers after removing and forcing in issues which he wanted captured.
Legal analysts say the new Copac draft has not reformed the current imperial executive presidency despite the issue looming large during the constitution-making process.
Research and Advocacy Unit senior researcher Derek Matyszak said the Copac draft was not different from the 2000 draft and the Kariba document in that respect. He said although the Copac draft has introduced an enlarged Bill of Rights, these changes were mainly superficial and symbolical as the structure of government was left largely intact.
“The constitution of 2000 was rejected largely because of the powers of the president,” said Matyszak. “The GPA talks were also largely around the presidential powers and surprisingly the Copac draft has largely left them unaltered after deliberating for nearly four years.”
National Constitutional Assembly chairperson Lovemore Madhuku also said the failure to reform the executive presidency means the Copac draft failed to introduce required changes.
“The constitution leaves all power in the president intact as he is still able to do what he/she wants,” Madhuku said. “The powers of the president as head of state are unlimited (Sec 110.1.) The president appoints all ministers and deputy ministers on his/her own without the approval of parliament (Sec 104). There is no limit on the number of ministers and deputy ministers. It is up to the president (Sec 104).”
Alex Magaisa, a constitutional law expert and senior staffer in the prime minister’s office who participated in the constitution-making process, said while there were limited changes to the executive presidency the new draft introduced new features that carried a lot of political significance.
“That the president will still exercise some of his powers on the advice of the cabinet or through cabinet is of large political significance,” said Magaisa. “But for the first time the president would now be obliged to share more authority than in the past.”
Magaisa said clauses on term-limits and certain appointments such as judges and the National Prosecutor General mean the president has to act on the advice of various bodies, which was also a departure from the past. The Copac draft introduces a raft of second generation rights such as education, shelter, environment, the elderly, children and marriage rights. These rights are largely aspirational than enforceable.
While failing to significantly reform the executive presidency, the Copac draft enlarges parliament to 270 members and makes substantial changes to the Electoral Act by introducing a two-tier electoral system. Sixty new seats have been created for women on a proportional representation basis.
Both Zanu PF and MDC-T held party caucuses where MPs were whipped into line to refrain from debating the Copac draft. According to party sources, the overriding of party caucus and parliament in the engineering of final Copac draft is meant to protect the principals’ interests rather than those of the people, then fast-track the process towards elections.
Speaker of parliament Lovemore Moyo emphasised to the House during Wednesday’s sitting the draft constitution was only a “take note” motion and not for debate by members, showing the process was staged-managed by the three parties in government.
While the MDC parties claim victory in the constitution-making process, Mugabe and Zanu PF prevent a radical overhaul of the current constitution and retention of the commanding executive presidency — key to their political survival — ahead of critical general elections.