Constitution Watch of 1st June 2012 [Select Committee Preparing for Second Draft]

CONSTITUTION WATCH 2012

[1st June 2012]

Select Committee Preparing for Second Draft

●  Compliance “Audit” of the first draft completed  ●  Lead drafters vindicated  ●  Consideration of political party comments underway

● SADC urges completion of Constitution

Late on Thursday 31st May, the full 25-member Select Committee plus technical advisors completed what they called an “audit”  of the first draft of the new constitution.  The audit showed that the lead drafters had followed their instructions and not imported their own or other “alien” views.  But, the other task the Select Committee were working on – namely, to see what could be included from the feedback from the GPA political parties – was not finished, because they could not reach agreement on what to include, and the buck has once again has been passed to the Management Committee.

Political Parties Feedback Under Consideration

When the revised first draft came back from the three GPA political parties to whom it had been sent for comment the two MDC parties basically endorsed it with a few suggestions and reservations that the remaining unsolved issues must be resolved and put in the draft before they could finally endorse it. [See Constitution Watch 19th May] ZANU-PF however came up with a 29-page commentary which the other parties claimed contained newly introduced demands or reopened demands on which some compromise had already been agreed.  Their significant demands largely centred round taking away powers given to Parliament in the draft, increasing the powers of the President, the accountability of security forces and objections to any form of devolution.

MDC-T co-chair Mwonzora said that “We completely rejected that 29-page document and said that we should work on the draft the way we’ve always done” – that anything done by way of revision would be confined to documents all parties had agreed to and signed.  He insisted it had not been agreed that ZANU-PF was free to bring up new issues that would drastically change previously agreed positions.  But ZANU-PF are still manoeuvring to get their demands met.

Recent Sequence of Events

On Monday 14th May the decision was made by the Select Committee to delegate to the Co-chairs’ Forum the work of going through the first draft in detail, correcting errors and considering what feedback from the political parties to accommodate and then formulating instructions to the lead drafters for the preparation of a second draft.

On Wednesday 16th May the Co-chairs Forum, consisting of the Select Committee co-chairs plus six experts advisors, two nominated by each of the three parties, started meeting to do this work.

On 17th May an impasse was reached in the Co-chairs Forum.  Hardliners within ZANU-PF had already raised objections to the Select Committee’s 14th May decision to leave to the Co-chairs’ Forum the decision on whether or not to include their demands.  When agreement could not be reached a work stoppage was called.  The matter was referred to the Management Committee and the full Select Committee.

On 21st May the Management Committee met to discuss the impasse

On 23rd May at a Select Committee meeting, a way forward was arrived at to end the deadlock – that instead of the Co-chairs Forum going through the revised draft and the party comments, the whole Select Committee plus technical advisers would go through the revised draft following a two-tier methodology, before fresh instructions were drawn up for the lead drafters.

On Monday 28th May the Select Committee started their work.  [The impasse over ZANU-PF’s new demands resulted in nearly two wasted weeks even before work resumed.]

Way Forward – Two-Tier Methodology

1. There would be an audit of the revised first draft,  going through it clause by clause through each of the 18 chapters of the draft, to assess the lead drafters’ compliance with the instructions given to them before they began work on that draft in late March.  This was considered important in view of much publicised accusations that the lead drafters had included their own ideas in the revised first draft in defiance of the instructions they had been given by COPAC.  This audit would be carried out by the full Select Committee, starting on Monday 28th May.

While doing the audit, but keeping the two tasks separate, the full Select Committee would also undertake a:

2. Consideration of the comments submitted by the three GPA political parties Editorial and other minor changes agreed on would be adopted.  If there was disagreement on changes asked for by a particular party – for instance, on substantial changes which would involve reversing positions previously agreed between the parties – those disagreement/s would have to be referred to the Management Committee for resolution.

Outcome

The audit This part of the process appears to have gone relatively smoothly and has overwhelmingly established that the lead drafters did comply with their instructions – thus debunking the accusations that these three highly respected professionals had imported their own un-Zimbabwean ideas into the draft and departed from the instructions given them by COPAC.

Consideration of political party comments Minor editorial changes and corrections of mistakes suggested were agreed on.  But ZANU-PF’s demands for substantial changes to be made to the draft  were not accepted.  The Select Committee decided they had done as much as they could and the disagreements have been referred to the Management Committee.

Management Committee Meetings Schedule

The Management Committee has planned to meet on Tuesday 5th, Wednesday 6th and Thursday 7th May.  It is to be hoped they can resolve matters promptly – but there will be competing claims on the time of members who are Ministers – Cabinet on Tuesday, Parliament [with important Bills] on Tuesday, Wednesday and Thursday.

Note: In Constitution Watch of 26th April 2012 we incorrectly said that the Minister of Constitutional and Parliamentary Affairs chairs the COPAC Management Committee.  In fact it is usually chaired by the party negotiators in rotation, although occasionally the Minister has chaired.

When will Lead Drafters Start the Second Draft?

The three lead drafters were summoned on Wednesday 30th May to start a second draft.  It was a puzzling summons, as reports indicated that there were still difficulties reaching agreement between the three parties.  In fact the drafters, having reached the drafting venue, were sent home again and told to come back possibly on Monday 4th June or soon thereafter.  As the Select Committee has referred disagreements to the Management Committee, they will probably not be called this week nor for some time.  There would seem to be little point in merely producing an interim second draft pending decisions on the areas of disagreement.  There remains the obvious ever-present risk that the Management Committee will not be able to solve the issue of ZANU-PF demands which are totally unacceptable to the other parties and that there may be another deadlock.  If the issue is referred to party principals and their advisors it may result in a whole new raft of demands.

SADC Summit Calls for Finalisation of Constitution

The final SADC Summit Communiqué on 1st June urged the parties to the GPA to finalise the constitution and confirmed that together with agreed reforms it was part of the Election Roadmap to be fulfilled before elections. Hopefully, with SADC endorsement the constitution will not be abandoned in favour of elections this year.

Last Words from COPAC Spokesperson

“This constitutional process is nothing but politics” COPAC member Hon Jesse Majome said at a civil society meeting organised by the Action for Conflict Transformation.  “The politics of the constitutional process is acrimonious, there is deep polarisation in Zimbabwe.”