The threesome –– Zanu PF and the two MDC formations –– became strikingly diverged during the Constitutional Parliamentary Committee (Copac) outreach programme, which was the second major stage of the constitution-making process after the first stakeholders conference held last year.
The constitution-making process is far from over as government is still to appoint a drafting committee, which will collate the views into a draft document to be discussed at the second all-stakeholders’ conference. The draft constitution and an accompanying report will then be debated in parliament.
The draft constitution emerging from parliament will be gazetted before the holding of a referendum and if it is approved by the people, the draft will be gazetted and introduced in parliament thereafter for adoption. According to the timetable outlined in the GPA, this process should take about 11 months if everything goes smoothly.
Cracks appeared after accusations of violence and intimidation were levelled against Zanu PF, which was alleged to have coached mostly rural communities into parroting its positions during the Copac.
Zanu PF, on the other hand, accused the MDC of opting for a negotiated constitution because it failed to sustain its position during the outreach programmes.
A negotiated constitution, Zanu PF has argued, would be a departure from the “people-driven” concept which was supposed to incorporate the people’s views.
A constitutional expert, Andrew Arato, in a presentation during a meeting organised by the National Association of Non Governmental Organisations recently, dismissed the concept of a people-driven constitution saying it never existed as legal experts would craft the final document.
However, despite the seemingly divergent positions which the two main political parties appear to occupy, legal and constitutional realities would force them to come to a common ground.
Constitutional law expert and University of Zimbabwe lecturer, Lovemore Madhuku, summed up the position saying the three political parties should converge if the constitutional process was to succeed.
“The political parties must be in agreement,” said Madhuku.” If they do not agree, then that would be the collapse of the Copac process.”
Madhuku said the reality was that even if the draft constitution was to be vetoed there were other processes through which the charter could be made the supreme law of the country.
After the referendum, the draft constitution still has to be passed by a two thirds majority in the House of Assembly. This means that at least 140 members of the House of Assembly have to vote for the constitution.
However, given the mathematical configurations in the House of Assembly, it is practically impossible for a single party to push for the adoption of the constitution.
Zanu PF and the MDC formation led by Prime Minister Morgan Tsvangirai hold less than 100 seats each with the Arthur Mutambara faction commanding seven seats after firing three members of the House of Assembly.
Thus the constitutional path is narrow, broken and jagged requiring the three political parties to tread carefully or they would be thrown off balance and fall along the way.
The nature of the options available for the politicians to craft a new supreme law for the country, Booker Magure, a post-doctoral research fellow at the Rhodes University in South Africa said, required finding a common ground.
“In light of the violence, intimidation and coaching of participants that characterised the outreach programme, I think the constitution-making process must go the negotiated route,” he said.
Magure said the sharp political differences among the three parties in the unity government made it difficult for them to work together and come up with “a credible people-driven constitution”.
“However, the major hurdle I foresee with respect to the crafting of a negotiated constitution is to find a team of facilitators that are perceived to be impartial by the two MDC formations and Zanu PF,” added Magure.
Another analyst and activist, Tapera Kapuya said the issue of a negotiated constitution suggested that there existed such a document either in the form of the Kariba Draft, a product of the three political parties that was drawn in 2007, or another one.
“This draft is equally dubious –– a hybrid of the rejected Chidyausiku Draft (of 2000) and the current as amended Lancaster House Constitution,” said Kapuya. “If this is the draft that the parties are to refer to as the draft to be presented for referendum, there is a likely chance that it will be rejected and whoever sponsors it will find themselves with egg on their face.”
Analysts are sceptical of the views which were gathered during the outreach programme mainly because of the allegations of coaching and threat of violence.
There were cases where violence broke out, for example in Harare, Makoni and Nyanga, causing the Copac teams to reconvene and gather people’s views.
Another analyst, Joy Mabenge, said what was recorded as data from the outreach meetings was not sufficient to constitute the “people’s views” as a product of a free expression process.
“Being people-driven is not synonymous with being Zanu PF-dominated as witnessed in most of the outreach meetings where certain individuals dominated responses to talking points with answers from a Zanu PF hymn book, in the same breath with a visible intolerance to any other views,” Mabenge said.
Mabenge, however, was still optimistic that there were points of convergence in the remaining constitution-making processes.
“Let us give the drafting process a chance: the first draft, itself a product of how the thematic and technical or drafting committees collate and compress the hordes of input from thousands of meetings will tell us if we have a constitution or some document far from being a constitution,” Mabenge added.
Arato, who teaches in the United States, said the signing of the GPA provided the skeletal and interim arrangement for a proper constitution-making process.
He said a two-stage process could be adopted where there is a negotiated stage which would be followed by another stage making sure that there are no legal ruptures in between processes.