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.
Whether we like it or not we the people are passive and naive, do we really think a group of politicians will sit and craft some document that suits our needs. We need to be proactive like what the South Africans do, we must demand to be served by the people we vote into power and not to be servants. We expect other people to fight for our rights, lets forget it otherwise we deserve the past, present and future governments. We fought a bitter war against colonialism where did that spirit go. We need to stand up and fight for our rights, surely do you think a constitution would deter politicians manipulating it, we need to be proactive and vigilant in demanding good governance.
I think the way to go is for all Zimbabweans to make sure that zanu pf departs the scene during the coming elections.Believe you me it will be easier to deal with the Mdcs to demand the real constitution we want. I particularly dont like the fact that ministerial appointments are not approved by parliament. Madhuku should focus energy on helping the mdcs get into power because he will then become relevant when we finally start the process of drafting a real constitution for the people.i think he actually knows that the mdcs had no option but to compromise because Zanu pf being incumbents in all material respects would never agree to simply give up power and be subjected to prosecution immeadiately after elections.
mr repoter the essence of the draft was not to curtail mugabe s excessive powers but to come with a constitution that will safeguard the abuse of powers by any president going forward .
if there are any imperial powers they will be wielded by H E Morgan R Tsvangirai after the election . the constitution will then be rewritten under new and sane leadership . remember hosni mubarak of egypt bullt the most secure prison in the arab world to lock up his opponents and enemies . now he is a permanent guest in that very prison until he breathes his last . see the irony ? never take things for granted .
The constitution was not written for mugabe or tsvangirai, It was written for the future leaders of Zimbabwe. Our experience with mugabe should not make us lose sight of the future. We will definitely need a powerful and considerate leader after mugabe so that we will not find ourselves in the egyptian scenario where an elected leader is at the mercy of the voters Besides the leaders respecting the constution so should the people.The constitution should vest reasonable powers in the next president to be able to tackle the problems emanting from mugabe ‘s departure
“we need a powerful leader who will not be @ the mercy of voter”?????? Are you people serious? The whole purpose of a democracy is that elected officials are accountable to their constituents, hw can you jus want to sign away your future to a single man like that. The problem is people are so convinced that MT will win the upcomin elections and that he will be in charge that you are willing to have a flawed document becoz you believe “your guy” will be in charge and will sumhow change things later.. Well, have you considered, what if he doesn”t win, then what?? Who are you goin to cry to when you have an all powerful zanu pf president? Or worse still, lets say MT does win and then as tends to happen, the power gets to his head (as the past 4 years have hinted.. Besides gettin married, gettin a motorcade, movin into a huge mansion, what real reforms have MT secured for the average man?) and he becums a harsh leader, then who will you cry to. We are our own worst enemies. I’m jus disappointed @ how gullible we are
Yes $50 million spent on reviving a rejected constitution. The MDC is happy with the new constitution, the one they rejected. Mugabe would have long gone had the 2000 been accepted. I think Mugabe could not believehis luck when it was rejected…that he would remain in office possibly for the rest ofhis life.
Who is to blame? Focus on Mugabe you lose sight of the bigger picture. It suggests that putting a complex issue to the citizens is not always teh wise thing to do, especially if they do not understand what a constitution is.
I am not a lawyer but the constitution affects me.I feel there should and must NEVER be so much power and authority vested in one person. The constitution is nit a temporary document. We want a document that will be changed because of changing circumstances in world order and trends and not a constitution that will be amended on the first parliamentary sitting. We want a human being for president and not a super human being. I am sure all those people who think it is right to have such a super natural head of state are drooling at the prospect of being one. If I commit a crime why should I be prosecuted when another person will have to wait until he is out of office????? Sounds so naive
ZIM IS RATHER COMPLICATED IN THAT THE PEOPLE ARE RATHER DOCILE AND TEND TO BELIEVE IN ONE PERSON. DONT TRUST A HUMAN BEING, TRUST GOD. A CONSTITUTION PROTECTS PEOPLE AGAINST ANIMALS THAT COMES OUT OF LEADERS. LIMITED TERMS SHOULD BE MANDATORY, WHETHER IT IS MUGABE OR ANY OTHER PERSON.