28 February 2013

Zimbabwe: Constitutional Referendum

ZIMBABWEANS are to vote in a referendum on March 16 to decide the fate of a draft constitution which has been overwhelmingly backed by its political authors but is facing opposition from the National Constitutional Assembly (NCA) led by lawyer Lovemore Madhuku, who, writes Dumisani Ndlela, could be fighting a rearguard battle.

IT is easy to get a feeling that politicians think their supporters to be string-puppets, and there is no better occasion to observe this than from Zimbabwe's current constitution-making drama.

Of course politics is about support, but in Zimbabwe, the battle isn't just about followers but how loyally a leader's commands are obeyed.

And, as Zimbabweans go for a plebiscite on the proposed new constitution on March 16, party leaders involved in the crafting of the charter have already given their supporters a signal.

Both President Robert Mugabe's ZANU-PF and Prime Minister (PM) Morgan Tsvangirai's Movement for Democratic Change (MDC-T), partners in the fractious inclusive government alongside Welshman Ncube's formation of the MDC, have told their supporters to vote "Yes" for the proposed supreme law of the country.

It certainly isn't the kind of anticlimax any political scientist could have predicted from the warring political gladiators, particularly PM Tsvangirai and President Mugabe.

Known for their bitter feud, President Mugabe and PM Tsvangirai had been largely expected to bicker "to the end" over the new constitution.

The constitution-making process, which gobbled nearly US$50 million over a three-year period, had been characterised by deadlocks, incessant fights between the three political formations in the inclusive government, with each party accusing the other of making unreasonable demands.

When the draft constitution was finally completed and handed over to political principals, ZANU-PF's political bureau, or politburo, proposed a raft of changes, triggering public consternation.

But then, unexpectedly, President Mugabe announced he and the other principals, including Deputy Prime Minister Arthur Mutambara, had agreed on a number of concessions largely to accommodate ZANU-PF.

Once President Mugabe announced the deal, the ZANU-PF politburo, which had suggested the numerous changes to the draft constitution, capitulated.

Suddenly, all three political parties began the stampede for a Yes vote, railroading the draft before Parliament.

Cathy Buckle, a human rights activist, writing on her blog, wondered: "Right up to only three weeks ago, there had been complete deadlock, meetings were ending in failure and the two main political parties were blaming each other for the stalemate. Then suddenly, in just one day, all that disappeared and now both the MDC and ZANU-PF say they are going to recommend a YES vote for the constitution when it goes to a national referendum."

She said most ordinary Zimbabweans had not yet seen the draft constitution so they did not know if the proposals they made at constitutional outreach meetings had been incorporated into the final draft or not or if these views had "been bargained away by the country's political leaders".

Indications are that they might still not see it, but will have to vote for it nonetheless.

For the politicians, it is a matter of what they decide, they decide for all Zimbabweans.

And so it is that Madhuku, who has steadfastly challenged a constitution-making process driven by politicians, rather than the people, has been vilified for his bitter fights against the process.

Apparently, the NCA, which Madhuku leads, has indicated that it would campaign for a NO vote in the referendum.

"The mission of the NCA has remained unchanged over the years. It is to advocate for a new, democratic and people-driven constitution in our country. By a people-driven process, we mean a process led by an independent constitutional commission not answering to the dictates of politicians of the day," said the NCA in its notice to resist the proposed constitution.

It said on this basis, it "rejected the Constitution Parliamentary Select Committee (COPAC) process" and would urge Zimbabweans to vote against the proposed constitution which it said was authored for Zimbabweans "by three self-serving political parties".

"It is now clear that COPAC is exclusively an affair of three political parties. The COPAC draft constitution is neither people-driven nor democratic and must be rejected," said the NCA.

Indeed, the constitution-making process became a three-party affair, and drafters had to navigate through political interests before finally coming up with a draft that eventually emerged from the process.

Apparently, it is a constitution meant to protect selfish political interests, but principals and their political bodyguards have largely seized on bits and pieces of the draft which they argue are progressive, such as issues of gender equality, to push the draft through to a Yes vote.

Yet, essentially, there is not much difference between the current draft and what Zimbabweans rejected in a constitutional referendum held on February 12-13, 2000. Then, the proposed new constitution had been drafted by a Constitutional Convention the previous year under the guidance of a Constitutional Commission.

The MDC, then an opposition outfit led by then opposition leader but now PM Tsvangirai, had campaigned for a no vote which prevailed.

The defeat shook the corridors of power, and it was indeed seen as a vote of confidence for Tsvangirai and his MDC party and a rejection of President Mugabe.

Notably, the proposed constitution then wanted to give power to government to seize farms owned by white farmers and transfer them to landless blacks without compensation.

Interestingly, the powerful white farmers' lobby bankrolled the NO vote against the proposed constitution, riding on the MDC party which was then labelled a puppet of Western interests by President Mugabe's government.

The chairman of the commission was then senior judge, Godfrey Chidyausiku, now Chief Justice of the Supreme Court, and had just less than 400 notable individuals, among them President Mugabe's critics who included Professor Jonathan Moyo and 150 legislators.

The Chidyausiku-led commission conducted a number of outreach programmes, which included more than 5000 public meetings.

The NCA, which had been formed in 1997 to campaign for a new constitution, had attended some of these meetings, particularly the so-called "People's Constitutional Convention" in Chitungwiza in June 1999 attended by more than 4 000 people.

The proposed constitution included a Bill of Rights based on that adopted in South Africa but with restricted rights in respect of homosexuality and other contentious issues. The current proposals also appear to have restricted rights in several respects.

The 2000 draft constitution proposed to expand the House of Assembly to 200 members, with 50 of them to be elected under a proportional voting system, and to create a new 60-member Senate. It proposed to limit the President to two successive five-year terms, a restriction to begin after the constitution came in force.

The executive President was to remain but would be supported by a Prime Minister who would be head of government on a day-to-day basis. Opponents of the constitution criticised the legal immunities given to the State and to individuals holding office.

But the biggest contention was on the issue of land.

The proposed Bill of Rights declared that black Zimbabweans had been "unjustifiably dispossessed of their land and other resources without compensation"; it therefore included a clause allowing government to expropriate white-owned farms without compensation.

The burden for compensation was vested on former colonial powers, the United Kingdom, which had declined responsibility in a letter that triggered an angry response from President Mugabe's government.

The now-proposed new constitution, to go for a referendum next month, does not appear to have shifted significantly from the 2000 draft: There is still an executive President, who will exercise his powers through a pliant cabinet; there is a proposals for an enlarged Parliament, even when it is clear the country has scant resources to support such a bloated legislature; there is a proposal to limit Presidential terms to two (some observers laugh that if the issue had been about getting rid of President Mugabe, adoption of the 2000 draft constitution would have solved the matter by last year); and there is still no responsibility on the part of government to compensate white farmers. In urging civil society to campaign for a YES vote, PM Tsvangirai said: "We need to campaign for a YES vote for the draft constitution's referendum because I believe that it is a national document that advances the progress of Zimba-bweans as it makes provisions for the Bill of Rights, promoting a free press and advancing women's empowerment."

Alex Magaisa, a lawyer and advisor to PM Tsvangirai, says there are few changes for which Zimbabweans should vote YES in the referendum.

"The constitutional limitations on power are also evident in the principle of term limits that will become a prominent feature of the constitution. Hitherto, the principle of term limits has been conspicuous by its absence in the constitution and Zimbabwe's political culture," said Magaisa, who was also seconded by the MDC-T as a technical expert during the constitution-making process.

Yet the issue of executive powers, over which the MDC had anchored its campaign against the 2000 draft constitution, remains largely untouched.

The NCA made the following averments on Presidential powers in the proposed new constitution.

- The President is Head of State, Head of government and Commander in Chief. (Sec 89);

- 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 maximum limit on the number of Ministers and Deputy Ministers. It is up to the President. (Sec 104);

- The President alone constitutes the Cabinet. (Sec 105). The statement in the Draft Constitution saying the President exercises executive authority "through cabinet" has no value because the Cabinet is the President's baby. All Cabinet Ministers are hired and fired by the President at his/her pleasure;

- The President is allowed to appoint up to three Ministers from outside Parliament. This is bringing back appointed non constituency MPs. (Sec 104(3);

- The President appoints all ambassadors without consulting anybody. (Sec 204);

- The President has the final say over the appointment of all permanent secretaries. (Sec 205);

- The President appoints all security chiefs (army commanders, commi-ssioner of police, director of CIO etc). In making these appointments, all the President is required to do is to consult one of his/her Ministers (Chapter 11);

- The President has the final say over the appointment of all judges (sec 180). Although there is provision for interviews, the President has power to refuse to appoint any of those recommended and order the Judicial Service Commission to start afresh;

- The President has the final say over the appointment of all Commissions including the Zimbabwe Electoral Commission (chapter 12);

- The President approves salaries, allowances and benefits for all civil servants from the lowest to the highest worker (Sec 203 (4)).

The President still has this power after appointing a Minister for the Public Service and the Civil Service Commission;

- The President has power to dissolve Parliament if it refuses to pass his/her government's budget (Sec 143(3);

- The President also has power to dissolve Parliament if it passes a vote of no confidence in his/her government. (Sec 109(4);

- The Constitution does not impose a duty on the President to answer questions in Parliament.

It leaves this to be decided by a future Parliament so that the political party controlling Parliament will shield the President from answering questions (Sec 140(3);

- The President has unlimited immunity while in office and is allowed to plead "good faith" after leaving office (Sec 98);

- The President has power to declare war. The role of Parliament in this regard is useless (Sec 111);

- The President has power to pardon his/her political allies. (Sec 112);

- The President has power to declare a state of emergency. (Sec 113);

An observer noted that PM Tsvangirai would certainly not be the person to propose trimming presidential powers because he is eyeing the same position and strongly believes the odds are in his favour to land that post.

"Probably (President) Mugabe asked him if he would want a position without power when they met behind-the-scenes to agree on the final draft. He has already shown a penchant for that seeing how he has exercised power within his party. Cabinet will just be another rubber stamp and it's just an academic argument to say the President will exercise power through cabinet," the observer noted.

In a random street survey in Harare by The Financial Gazette In-Depth, all individuals who indicated that they had voted against the 2000 draft constitution said they did not know what the draft contained but voted against it because their political leaders and civil society bid them to do so.

"Wasn't it President Mugabe's constitution? I think that's why I voted against it," said a young man calling himself a "democracy supporter".

So, as it was then, so shall it be now: Zimbabweans will go to the referendum to vote Yes as directed by their party leaders. ZANU-PF and the two MDC formations in the inclusive government have urged their supporters to vote for the proposed new constitution.

So the only opposition to the proposed draft will come from the NCA, which has no resources for nation-wide mobilisation and risks prosecution under anti-freedom laws should they organise gatherings to mobilise against the proposed constitution.

Yet Douglas Mwonzora, spokesperson for the MDC-T and co-chairperson of COPAC, which has been spearheading the constitution-making process, has suggested a pact with civil society groups mobilising for the Yes vote.

"Civil society needs to sign a Memorandum of Understanding with COPAC to conduct civic education. This will address the issue of harassment ahead of the referendum," Mwonzora said while addressing civil society leaders at an interface forum held at the Crisis in Zimbabwe Coalition head office in Harare on February 13, 2013.

The NCA has urged the inclusive government to ensure credibility of the referendum "and that the people be afforded a free and fair framework to exercise their choice in the matter".

The NCA has also demanded the following:

- Making the draft available as widely as possible in the major languages.

- Adequate period for the campaign to enable all voters to have a full grasp of the provisions of the draft constitution before making their choice. A minimum of two months is required.

- Suspension of the provisions of the Public Order and Security Act (POSA) for campaign meetings. If this is not done, the NCA reserves its right to campaign without being restricted by POSA.

- Equal access to the public media by both the YES and NO voices.

- Impartial civic education on the contents by the Zimbabwe Electoral Commission and civil society (other than NCA). The NCA regards any outreach programmes by COPAC on the draft as partisan.

- Peaceful campaigns and in this regard call upon the political parties in the inclusive government to desist from any forms of violence and intimidation.

But the stink already reaches high heaven.

Zimbabweans have been given exactly 30 days to look at the draft constitution and make a decision on the proposed supreme law of the country.

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