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Zimbabwe’s New Draft Constitution in Limbo

The Zimbabwean democracy has been thrown into uncertainty again, following ZANU-PF’s rejection of the proposed draft constitution released on 19 July 2012. The much anticipated document was drafted by the Select Committee of Parliament on the New Constitution (COPAC) of Zimbabwe, a process that was delayed by three years and cost the taxpayer some US$50 million. The draft, if effective and implemented, will conclude the four year transitional Inclusive Government (IG) and hopefully pave way for smooth elections in 2013.

In brief, the IG, also known as the Government of Unity, was formed in 2008 following the signing of the Global Political Agreement (GPA) brokered by the Southern African Development Community (SADC). It is a government shared between the Zimbabwe African National Union Patriotic Front (ZANU-PF) and the two factions of the Movement for Democratic Change (MDC). Thus, the executive includes President Mugabe, Prime Minister Morgan Tsvangirai and Deputy Prime Minister Arthur Mutambara. They had agreed to end violence, share power through a transitional government and accelerate economic restoration .In addition, the parties to the GPA pledged to restore the rule of law, draft a new constitution, pursue land reform and promote nation healing, while hoping that the West will remove sanctions. This brought an end to 38 years of single party rule by the ZANU-PF and gave the MDC factions an opportunity to gain experience in government.

The fate of the proposed document and that of the Zimbabwean democracy and nation remains in deadlock following ZANU-PF’s rejection of the draft constitution, putting forward its own version, to the chagrin of the MDC factions that had endorsed the COPAC draft.

This article analyses the gamesmanship over the new constitution in light of the immense pressure on all stakeholders to work towards a successfully completion of the transition in Zimbabwe.

Remarkably, the four year power sharing government has survived a period marked by conflict, mistrust and reluctance, arising from power struggles and ideological differences between the main parties in the government. Mugabe and the ZANU-PF, having lost confidence in the government and reluctant to stay in this political marriage, have since 2011 been calling for an election even without the constitution and have persistently sought to end this shared government. On its part, the MDC factions have worked to keep the government in place in spite of their frustration about working relations with the dominant ZANU-PF. SADC has sought to keep the parties to their agreement, insisting that preconditions for elections as set out in the GPA be adhered to, leading to ZANU-PF leaders accusing SADC of meddling in Zimbabwe's internal affairs.

A constitution is a crucial ingredient for political stability in every state. As a body of written and unwritten rules and laws, it lays down the general principles for the organization of government, the distribution of power to among its various organs, as well as the exercise of this power. It is also used to define the post-transition ground norm in countries coming out of crises. A democratically-drafted constitution minimizes the ability of political actors to manipulate and manage post-transition government to their own favour. Dominant actors often want to disproportionately influence the drafting process. This is why the ZANU-PF has been uncomfortable with the constitutional process and its outcomes. Even before the draft constitution was released, there were allegations that ZANU-PF was frustrating the COPAC and working to have the draft blocked. It was uncomfortable with stipulations that sought to adulterate presidential powers while strengthening those of parliament and the judiciary. The rival draft produced by the Politburo, ZANU-PF’S principal policymaking committee, seeks to reverse this balance and separation of power. It provides for a president to retain all executive powers rather than sharing them with cabinet as proposed by COPAC, and also promotes presidential immunity from prosecution.

ZANU-PF is also fighting to remove the proposal to subject candidate judges to a public interview process, arguing that this is a presidential prerogative. They also reject dual citizenship. ZANU-PF wants to retain the current powers of the Office of the Attorney General and the right of the president to appoint incumbents. It is skeptical of the idea of a Peace and Reconciliation Commission and the creation of a National Prosecuting Authority.

MDC factions and other critics see the ZANU-PF position as an attempt to abort the democratisation of the state and to protect its own leaders from the consequences of such democratisation. Analysts further argue that ZANU-PF is fighting to maintain the status quo, which it dominates. Essentially, it is a conflict over whether the rule of law in the Platoan sense prevails over presidential powers or whether ZANU-PF is ready for a constitutional democracy or not. Obdurately, the principle that law must be the arbiter between the powerful and powerless in society is difficult for Mugabe and the ZANU-PF to accept, having run Zimbabwe for the last thirty-two years with absolute power and in the process became liable to all sorts of potential criminality.

There is a real fear within ZANU-PF that their leaders will be open to criminal prosecution should they leave office or be outvoted in the coming elections. It is worth underlining that the presidential immunity in the COPAC draft applies only while the president is in office. ZANU-PF’s uncertainties are to some extent related to their conflict with powerful Western countries, which have lobbied for Mugabe and his close aides to be charged for crimes against humanity and alleged crimes committed on critical citizens under his presidency. Human rights violations recorded by organisations like the African Commission on Human and Peoples Rights, the UN human rights agency and the Scotland Yard’s S015 War Crime Team could be used to build a case against Mugabe and ZANU-PF ministers. This is why the party demands an open-ended presidential immunity.

The spirit of the GPA requires that ZANU-PF's protestations and concerns should be addressed and cannot be ignored. For now, the MDC factions seem unready to reopen the complex constitution-drafting process, insisting that the draft reflects the will of Zimbabweans. Pressure groups like Women of Zimbabwe Arise and other critics have expressed worry that the COPAC draft copies foreign texts and may have the effect of protecting the interests of Rhodesians and imperialists. The will of the people is now also being contested between various politicians and critics. The MDC's history of cosy relationship with the West and conniving with them to destroy ZANU-PF is also harnessed to cast doubts on the draft constitution. The MDC’s approval of the draft is thus seen as an ominous motive to undermine Zimbabwe's sovereignty, executive powers of the president and the security sector, while speciously giving power to non-state actors.

Worried about this deadlock, SADC, at its Summit in Mozambique on 18-19 August 2012, requested its mediator, President Zuma, to help the parties overcome this latest logjam in order to pave the way for free and fair elections. Indeed, Zuma's team has frequently visited Zimbabwe to help them find the solution needed.

Although SADC recommend that ZANU-PF and the MDC should continue to implement the GPA within the timeframe agreed, it is not yet clear how the organisation will respond should the impasse remain unresolved to the end of the parliamentary term. ZANU-PF would be happy to frustrate the process so that the next elections are held under the current constitution.

The MDC factions seem not to have alternative strategies should the ZANU-PF simply stonewall to the end of term. What is needed is a tight time table, continuous negotiations, public pressure on ZANU-PF and a possible extra-ordinary SADC summit to monitor progress well ahead of the end of the parliamentary term.

Ms Mhlanga holds a BA Hons in Politics from the University of Limpopo and is a NRF research assistant at the IGD. Her views do not necessarily reflect those of the IGD.

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