But, as it is obvious Zimbabwe does need a new constitution, we have to consider how best to salvage a goal that has so far proved elusive. To do so requires, in the first instance, an analysis of the problems that have afflicted Copac itself, with the benefit, perhaps, of some comparisons with an earlier attempt at constitution-making, namely the Constitutional Commission of 1999/2000.
Therefore, Copac has to be evaluated in terms of three obvious and all-inclusive criteria: conception, process and output. With respect to the conception of Copac, the question is: to what extent has it ensured and enhanced the integrity of the constitution-making process or raised the profile of constitutionalism within the Zimbabwean historical and political process?
To be fair, Copac has been mired in controversy from the very outset in April 2009.
Copac got its mandate through Article VI of the Global Political Agreement (GPA) wherein the three political parties agreed it should lead the drafting of a new constitution for Zimbabwe. Herein lies the first problem: a political tri-partisanship that has proved almost fatal for Copac and in general accounts for the incessant bickering therein, the failure to complete work within the stipulated 12 months and the obscene budget of US$45 million!
For example, even as recent as March 13, it was reported out of Copac that the lead drafters could not start work on the final version of the draft constitution until all issues had been finally agreed by a plethora of structures borne out of this tri-partisanship: by the three Copac co-chairs, Select Committee of Parliament itself, Management Committee which includes the Minister of Constitutional and Parliamentary Affairs, and the three GPA parties’ principals, President Robert Mugabe, Prime Minister Tsvangirai, Deputy Prime Minister Arthur Mutambara.
By comparison, the Constitutional Commission was appointed on April 26, 1999, through Statutory Instrument (138A of 1999) and sworn-in on May 21, 1999. The commission’s first working plenary was held on June 18, 1999. That plenary adopted the commission’s method of work and thematic committee structure. The commission was directed to submit its recommendations by November 30, 1999 and given specific terms of reference, charging it with the responsibility to set in motion a process the outcome of which should be a new constitution.
The commission consisted of 400 members: 150 MPs constituted the core of the membership; and the other 250 members were drawn from the private sector and a cross-section of civil society. An impressive leadership bureau was appointed: the Judge President of the High Court, now Chief Justice Godfrey Chidyausiku, was chairman of the commission, with prominent female statesperson, Mrs Grace Lupepe, Anglican Archbishop Jonathan Siyachitema and renowned academician, the late Professor Walter Kamba, as his deputies.
The executive committee operated within a 15-member coordination committee chaired by Kamba and consisting of a secretariat headed by Secretary to Cabinet, Dr Charles Utete, with his deputy then Dr Misheck Sibanda (now Secretary to Cabinet), as the contact person; an administrative and finance subcommittee chaired by this writer, an academic, former senior civil servant and head of Sapes Trust; and media and public relations subcommittee chaired by an academic, Professor Jonathan Moyo.
Included in the coordination committee were the chairs of the thematic committees: lawyer and jurist Rita Makarau for separation of powers (pillars of the state); Professor Heneri Dzinotyiwei for executive organs of the state; prominent lawyer Canaan Dube for citizenship fundamental and directive rights; academician Dr Themba Dlodlo for levels of government; academician Professor Rudo Gaidzanwa for customary law; social and political activist Lupi Mushayakarara for independent commissions (pillars of democracy); prominent businessman Eric Bloch for public finance and management; and prominent lawyer Honour Mkushi for transitional mechanisms.
Therefore, by comparison, the leadership of Copac is a pale shadow of that of the constitutional commission: no doubt a major factor and problem attendant to Copac. The three co-chairpersons of Copac are less than high-profile in their respective parties and have enjoyed little or no tangible support from both their party leaders and the Copac membership. Poor leadership accounts in no so small measure for the obvious Copac weaknesses and slack coordination.
This introduces the second criterion when assessing and evaluating Copac: To what extent has the process — or the methodology — assisted in the pursuit of producing a sound document, including the deepening of constitutionality, through a process-based approach that is inclusive and participatory?
Of course, the latest revelations confirm there is little correlation between the purported outreach exercise and the resultant draft constitution. At one of the Sapes Trust’s Policy Dialogue Sessions a few months ago, Professor Welshman Ncube asserted that, given the numerous problems attendant to the Copac exercise, the latter would have to resort to the ‘‘negotiation’’ method if a draft constitution was to emerge at all.
In short, Copac has so far succeeded most in affording constitution-making a negative image. A laughing stock perhaps! But Zimbabweans in general are no more informed about constitutionality under Copac than they were in 2000 when the draft constitution was rejected, for the wrong reasons, in that referendum. To be fair, people have become cynical about constitution-making, let alone about Copac.
By comparison, the constitutional commission was instructed, mandated to gather evidence through its own organisational structures which it was free to create, hold public hearings throughout Zimbabwe to receive oral and written submissions and to ensure the new draft constitution would be informed, as far as was feasibly possible, by the views of the people. The president further informed the commission that after its submission on or before November 30, 1999, the draft constitution would be put to the people in a referendum and, if accepted, would be brought into force through the appropriate Legislative Act.
On November 29, 1999, the commission submitted its report in the form of a draft constitution to the President of Zimbabwe after it had fulfilled its mandate within the stipulated time-frame of five months, at an (audited) cost of US$7 280 652 (or, at that time, the equivalent of Z$297 196 900).
Indeed, Copac should have paid more attention to the work and output of the constitutional commission. And if, as is now obvious, Copac’s output in the form of a draft constitution remains not only tentative and incomplete after 36 months, then there is urgent need to salvage this constitution-making process through another constitutional commission.
In other words, the constitution-making exercise has to have a legal basis as opposed to the largely political context within which Copac was conceived and operates. The new constitutional commission should likewise be time-framed, no more than three months (June to August, 2012) given that a lot of work has already been done through previous exercises, including the NCA draft, the Kariba one and Copac itself.
In general, the model of the constitutional commission of 1999 remains the only possible alternative to ensure Zimbabwe has a new constitution before the next elections are held.
Mandaza, an academic, author and publisher, was an executive member of the Constitutional Commission of 1999/2000. He is currently convener of the Sapes Trust’s Policy Dialogue Forum.