ZANU-PF has still not come out with a final and definitive statement of its position on the COPAC draft constitution. The Politburo has already held four meetings to review the draft - on 25th, 27th July, 1st and 8th August - some lasting into the early hours of the next morning, which reportedly indicated considerable internal disagreement. What has, however, become clear from statements by their lead negotiator, Patrick Chinamasa, and the ZANU-PF spokesperson, Rugare Gumbo, is that the Politburo has decided the party wants substantial "improvements" to the draft.
Mr Gumbo has said the Politburo may make an official statement on the party position after yet another Politburo meeting scheduled for after Heroes and Defence Forces Days. Although politburo meetings are usually on a Wednesday, because of the long weekend, Cabinet will be meeting on the Wednesday and there will probably be a Politburo meeting on Thursday 16th August.
Meanwhile the party's legal team was tasked to prepare a new draft for the Politburo incorporating the changes that have already been decided on. This may be accepted at the next meeting , or the Politburo may continue to demand more changes and yet another new draft will have to be prepared before final acceptance. Only when the ZANU-PF new draft is made public will it be possible to know precisely to what extent the Politburo's new draft has departed from the COPAC draft accepted and initialled by the party negotiators.
Mr Gumbo said that ZANU-PF's negotiators had been "insensitive" to the party's position and had compromised too much. Although Mr Chinamasa declined to respond to that assessment, he is now adamant that the "final" draft agreed by the Management Committee was still open to change. In other words ZANU-PF wants the other parties to compromise further to meet its demands. Moreover, Mr Gumbo said ZANU-PF was not going to budge on this position - "The constitutional draft is not final and we will not go to a referendum without amendments. If they want, they can go alone. We want to hammer a draft that is acceptable to all and not just to two parties."
But the two MDCs insist that they have already compromised far more than they wanted to on key issues, and are adamant that they cannot give away more without grossly violating what their parties stand for.
It remains to be seen whether President Zuma's visit and the forthcoming SADC Summit will influence this new impasse and if pressure is applied who will succumb to it - ZANU-PF or the MDCs.
Both MDCs Committed to COPAC Draft as a Negotiated Compromise
MDC-T "After extensive deliberations, the National Council resolved to accept the [COPAC] Constitutional draft. This is despite the fact that some aspects which the MDC would have wanted included in the Draft could not be incorporated. It recommended Zimbabweans to vote 'YES' for the constitution in the referendum."
When it became known that ZANU-PF was going to demand further changes, MDC-T spokesperson Douglas Mwonzora said ZANU- PF will not have its way with the draft constitution this time around. "The draft constitution that we have is not a product of the MDC alone but a result of two key processes that ZANU-PF participated in - the outreach process and the negotiation. In both instances, ZANU-PF was equally and ably represented by people with a requisite mandate. We cannot possibly re-subject the draft to further negotiation. As far as we are concerned, it is decision time for Zimbabweans including those that support ZANU-PF on whether what we have is a good or bad draft."
MDC Party leader Welshman Ncube said that, while the draft constitution was not perfect and did not contain many issues Zimbabweans would have wanted included, it had been negotiated and his party had accepted it as a "compromise". He cautioned that "It is not possible to renegotiate or alter anything without collapsing the whole process. We as a party will not accept any attempt by anybody to renegotiate any aspect of this draft. We will not accept any forum for some people to veto or alter the agreed document." Party spokesman Qubani Moyo said the draft was "a fair compromise" and should be put to the people at the Referendum to allow them to decide.
When the Politburo demands became known Prof. Ncube said his party will not play into the ZANU-PF political games. He said his party was done with negotiating the draft constitution. "If they (ZANU-PF) think their rejection will draw the MDC back to negotiation, then they are misleading themselves, we will not go back there. If they are not happy, they can produce their own draft that will be taken to the people together with the COPAC draft. The people will choose, as they know what they said. They will vote for a draft that is reflective of their views."
Minister Eric Matinenga [speaking in his capacity as Minister and not as a party member] has commended the draft and advocated its adoption, saying "the draft will democratise our institutions, thereby promoting good governance and accountability".
What Happens Next?
Will there be further negotiations? ZANU-PF wants them but both MDC formations have already said they will adamantly oppose any change to the COPAC draft. Even were the MDCs to back down and negotiations reopen, would the negotiators in the Management Committee reach consensus? It took weeks of hard bargaining to reach consensus following the ZANU-PF demands after the first draft. How long would another round of negotiations take?
Will the impasse be referred straight to the principals? Would the principals be more likely to reach agreement? And would such agreement be acceptable to their parties? Would Prof Mutambara, who still occupies the role of a principal, be acceptable to the MDC negotiators?
Could there be more than one draft put to a Referendum? There was a suggestion that ZANU-PF put their draft to the Referendum as well as the COPAC draft. But if that route is followed, the two MDCs may want to redraft the COPAC draft to put back what they gave away under pressure from the ZANU-PF. Putting two or more drafts to the referendum would be difficult and in any case only a temporary solution unless there was a binding commitment from all parties to respect the outcome of the referendum. In the absence of such a binding agreement a showdown between opposing parties might simply be postponed as the constitution would still have to go through Parliament [see below]. Finally, having alternative drafts put to the referendum would give rise to fear that what negotiations could not agree on would inevitably increase the danger of inter-party conflict degenerating into violence during the referendum campaign.
After being approved in the Referendum the draft constitution must be gazetted as a Bill which will need a two-thirds majority in both the House of Assembly and the Senate to pass through Parliament. This is a legal requirement for a new constitution or constitutional amendments. The MDCs do not have this majority and it is unlikely they will garner enough support from ZANU-PF backbenchers to go against their party directives. Even were the MDCs to somehow put together the required majorities and get the Bill passed by both Houses, it would then need the President's signature before being gazetted and coming in to force. Which would mean that even if outvoted in Parliament ZANU-PF could still, through the President's veto, block the new constitution at the last moment.
Veritas Comment: This was known right from the start of the process. There was lobbying for Constitution Amendment No. 19 to include the GPA provisions on the constitution-making process and its time-frame, with an added provision that a YES vote at the referendum would be automatically legally binding. In the absence of this, it was suggested that a Constitution Act should be passed at the outset of the process guaranteeing that the outcome of a YES vote would be adopted. COPAC's reply was that the goodwill of the parties, and a moral imperative for Parliament and the President to accept the outcome of a referendum, were enough. [Contrast the smooth passage of the Kenyan constitution - the Kenyans first passed an Act providing for the whole process and they included a provision stating that if there was a YES vote at the referendum, the constitution would automatically come into force 14 days later.]
COPAC Plan for Second All Stakeholder Conference on Ice
ZANU-PF's time-consuming audit of the final draft has effectively stopped COPAC's progress towards the Second All Stakeholders' Conference, which will in turn delay plans for the Referendum.
Translation exercise not started - COPAC promised translation of the draft into all vernacular languages. Translators already hired were expected to start work on Monday 30th July, but this did not go ahead, and the translation exercise is on hold.
Management Committee meetings cancelled Several Management Committee meetings scheduled to discuss arrangements for the Second All Stakeholders' Conference had to postponed and then cancelled.
Project Board quarterly meeting indefinitely postponed The Project Board brings together COPAC, the Ministry of Constitutional and Parliamentary Affairs and the development partners [donors] who have so generously borne a substantial portion of the cost of the constitution-making process and from whom further financial assistance will be required. The Board's regular quarterly meeting scheduled for 2nd August was postponed for a week, to 9th August, and then indefinitely postponed until the way forward becomes clearer.