Draft accord: Will of political elite prevails

THE Global Political Agreement (GPA) principals’ agreement to park contentious issues in the draft constitution for 10 years after which they would become part of the governance charter is a complete subversion of the will of the people who participated in the constitution-making process.

Brian Chitemba

President Robert Mugabe and his long-time nemesis Prime Minister Morgan Tsvangirai, Industry and Commerce minister Welshman Ncube, and Deputy Prime Minister Arthur Mutambara finally broke the logjam over the writing of a new constitution when they reached the agreement last week.

The accord indicates a deeply divided society where the will of the elite prevails over the wishes of the majority.

The principals agreed to shelve the running mates clause — which would have resolved Mugabe’s succession issue that has divided his party Zanu PF — for 10 years from the date the new constitution comes into effect.

They also agreed to set up a Peace and Reconciliation Commission for only 10 years, after which it would be up to the government of the day to put it through an Act of parliament if there is need.

The constitutional court can also only come into effect after 10 years while there is also a proposed provision spelling out that in the event of a president dying or being incapacitated, the party from which the head of state hails would provide the successor. This provision effectively bars independent candidates, a factor that has already raised much furore.

The principals further agreed that there be a six-year transitional period for a new independent National Prosecuting Authority (NPA) separate from the Attorney-General (AG’s) office.

The draft constitution further provides a waiver on timelines within which Mugabe can call for elections. The new provision was agreed to by the principals on the basis that they were unsure as to when the constitution-making process would be completed.

This means the president can call for elections as soon as the new constitution has been adopted. Observers noted that the waiver on election timelines proves that the MDCs gave in to Mugabe’s demands for early elections way before the new constitution was given time to establish and synchronise institutions provided for in the governance charter.

The agreements indicate that politicians were never sincere about incorporating the views of the masses — as they claimed ad nauseum — in the new governance charter, sparking widespread criticism over why Copac “wasted” about US$50 million in the four-year constitution-making process.

While the political parties initially agreed to the July 18 2012 draft constitution produced by Copac, Zanu PF spectacularly somersaulted and demanded a raft of amendments to retain Mugabe’s imperial powers, whittled down in the draft. Zanu PF’s politburo spent long hours shredding the Copac draft to incorporate its demands meant to protect Mugabe’s interests.

Last week’s concessions by the MDCs have been described as a betrayal of the expectations and aspirations of Zimbabweans who participated in the Copac outreach programme.

It is “scandalous”, observers said, for the MDCs to be arm-twisted into parking constitutional issues for periods stretching up to 10 years.

While many Zimbabweans feel cheated by politicians, the drafters — former High Court judge Justice Moses Chinhengo, lawyer Priscilla Madzonga and University of Zimbabwe law lecturer Brian Crozier — are busy amending the July 18 draft which would be presented to parliament next month by Copac.

Matabeleland Constitutional Reform Agenda chairperson Effie Ncube argued that postponement of constitutional issues for 10 years mirrored the political landscape where views and values of the ordinary people were trampled upon by the rulers.

The sunset clauses which refer to the parking of constitutional matters are not peculiar to Zimbabwe; the same happened in countries like the United States where the issue of slavery… was deferred for three years.

But Ncube argued that deferring critical issues for 10 years was tantamount to refusing to implement democratic reforms.
“Postponement of controversial issues is mostly done for two to three years to allow negotiating parties’ tempers to cool down,” said Ncube. “But in Zimbabwe’s case, its crystal clear Zanu PF is buying time to resist reforms.”

The new draft constitution has sparked a furore from constitutional organisations with the National Constitutional Assembly vowing to campaign for a “No” vote in the referendum which Constitutional and Parliamentary Affairs minister Eric Matinenga says would be held between March and April.

Although he could not discuss details of the draft constitution, NCA chairperson Professor Lovemore Madhuku warned his organisation would campaign vigorously for a “No” vote in the referendum because the whole constitution-making process was driven by politicians instead of the people.

But political analyst Chamu Mutasa believes the “Yes” vote would prevail because political parties were likely to choke their supporters to ensure the new governance charter sails through.

However, some academics argue that the breakthrough achieved by the principals was not a Mugabe victory because the charter provides reasonable clauses for sustainable transformation.

They say Zimbabweans should celebrate the new constitution since it would solve contentious issues even after 10 years while the creation of the Peace and Reconciliation Commission would bring to finality historical injustices like Gukurahundi and the 2008 election violence, among others.

Policy and administration expert Qhubani Moyo said the provision of devolution would ensure that power would reside in the grassroots and citizens away from the capital where everything is currently centralised.

“Deferring clauses for 10 years is not an issue, but what is fundamental is the acceptance of institutions like the Constitutional Court to be established,” said Moyo.

“With elections coming, if Zimbabweans vote wisely, they should choose a party which will effect the fundamental issues immediately after polls.”