Exposed: Moyo plagiarising material from Zambian Constitutional law experts to attack copac

As Zimbabwe trudges on in the crucial stages of the fragile transitional process under the SADC backed Government of national unity; the nation is yet again gripped by confusion stitched-up by masters of the dark arts since the unveiling of the new second final draft Constitution.

Since the release of the draft in the past week, Zanu-PF Politburo member and Tsholotsho North House of Assembly member Professor Jonathan Moyo the self proclaimed anti-COPAC dooms merchant has done exactly what everyone expected of him; to attack the process which has taken so much time and effort to complete.

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Moyo is well know for attacking any major national political event in which he is not part to.

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In any case, Professor Moyo’s actions are not a surprise and they are very much in sync with his hubristic character so much that lack of it (attack on draft) would have caused serious concern.

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Zimbabweans should expect similar tantrums from Dr Ibbo Mandaza.

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According to the State media, Moyo was joined by the embattled Chairman of the now defunct National Constitutional Assembly (NCA) Professor Lovemore Madhuku and Zanu-PF loyalist Goodwill Misimirembwa, a sidekick of Defence Minister Emmerson Mnangagwa.

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The “legal experts” as they were labelled by the State media ganged-up and dished-out disdainful academic banditry suffice to feed their self centred egos and plots of rivalry against academic opponents behind copac work.

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What we have in the Zimbabwean political crisis in recent years, besides some rabid Zanu PF leaders, is a situation torched by a group of former and current embittered unemployed academic rivals who have tken advantage of the political stalemate and turned it into some form of employment. They stitch-up political processes funded by NGOs and they also access cash as advisors to politicians.  

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They will argue that this process is wrong let’s make it this way, and rivals will in turn say that process is wrong and the bickering can go on for the next centuries.

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Moyo in an article published in the Sunday Mail roundly criticised the final draft, saying members of the management committee compromised on sticking issues thereby effectively dismissing the people’s views in favour of their preferences.

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His sentiments were echoed by legal expert Mr Goodwills Masimirembwa who said the draft constitution deviated from what people said on many fundamental issues.

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He cited issues such as executive powers of the President, dual citizenship, the security services sector and land tenure, among other pertinent issues. A Zanu-PF loyalists spelling-out dual citizenship as a way to seek sympathy from the Diaspora on the sum total of the political skulduggeries.  

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Since the beginning of the process, Masimirembwa was the so called technical expert seconded to COPAC by his party Zanu-PF to watch over the process on behalf of the faction led by the embattled defence Minister Emmerson Mnangagwa, now he is disowning the content of a draft document from a process he dumped.

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Constitutional law expert Professor Lovemore Madhuku has also been roped-in as a make-over or political condom to legitimise this cynical agenda and he is reported to have said the draft was not fundamentally different from the current Constitution.

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He argued that the President still retained his executive powers without elaborating or picking up specific sections of the Draft.

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Prof Madhuku felt that the new draft favoured Zanu-PF as there were no significant changes.

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The two men from Zanu-PF Moyo and Misimirembgwa effect accused the drafters of distorting the people’s views and inventing elements of what has been put in the Draft.

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In short, Zanu PF or a faction of Zanu PF to which they represent is out to trash the constitution making process, and the reason for this is to stop the production of a democratic constitution.

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It is clear Moyo and Misimirembwa’s attacks are not in defence of the people’s wishes but an attempt to enforce what a faction in Zanu-PF leadership wants. They adulterated the 2000 draft constitution and now they are trying to trash this parliament-led process.

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The latest petulance from Professor Moyo and his allies is not new in constitutional reform processes and it is a well known template perfected by many in the academic World who are well connected to the non-governmental organisations through out the World.

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The International Crisis Group had a similar headline “Afghanistan’s Flawed Constitutional Process” – Afghanistan is stumbling on its way to a new constitution. The document that must express the values and aspirations of a people may lack widespread legitimacy because it has been drafted in a secretive and unaccountable manner.

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In the Sunday Mail, Professor Moyo writes, “it is clear beyond argument that Copac’s final draft constitution is a compromise that is not based on the views of the people as envisaged by Article VI of the GPA under which Copac was established.”

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Compare this with the Zambian constitution reform process currently underway: Zambia President Michael Sata appointed all the members of the Committee without consulting Parliament or other stakeholders, and set the terms of reference for the team, again without consultation. The government is the one to receive the final document and presumably propose the final changes to the constitution.

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However, what is even more stunning in Professor Moyo’s article is that it appears he plagiarised some stuff in his article from two Zambian constitutional lawyers based in Diaspora, US-based law Professor, Muna Ndulo and UK-based counterpart Dr Chaloka Beyan criticising the current Zambian Constitution reform process in which “they observed that the current constitution-making process is deeply flawed and may not produce good results” according a report in the Zambian Post.

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A close look at the following paragraph Professor Jonathan Moyo’s article in the Sunday Mail: “Consider the following four specifics which show that the draft prepared by Copac’s management committee is a negotiated compromise that (1) does not reflect the views of the people gathered during the Copac outreach programme; (2) does not reflect the responses of the political parties to the draft prepared by Copac’s co-chairpersons on April 22; (3) does not reflect the agreed positions established before Copac referred the “parked” issues to the management committee and (4) is littered with serious internal contradictions cynically intended to politically placate competing constituencies to the point of being constitutionally incoherent.” 

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Then the two Zambian lawyers: In a joint statement, they stated that the option taken by the government does not ensure transparency. The duo stated that the process had numerous flaws that made it difficult to come up with a people’s constitution.

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“It is our considered view that the current constitution making process is deeply flawed and is unlikely to deliver a constitution that is legitimate and provides a framework for the democratic governance of Zambia. The primary flaws in the process are the following: (1) the process itself is inherently unrepresentative and suffers from a crisis of legitimacy; (2) it is ill designed to build consensus and produce a constitution the country can be proud of,” the two lawyers stated on Thursday.

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“The terms of reference of the committee do not say a word about its philosophical approach to the constitution but instead reflect its phobia about values, transparency, institutionalisation of accountability and policy in the manner of its appointment; (4) the process is not guided by any agreed constitutional principles or national vision; the impression given is that it is simply about a Technical Committee on Drafting a new constitutions.”

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On devolution, Moyo says: “But that is a grave error. The concepts of unitary state, federalism and devolution have to do with “governmental power” and not with “geography”.  In essence, and this is a crucial point that the GPA negotiators have altogether missed in their draft, governmental power — or the political power of the State in a unitary constitutional structure — is  “indivisible”. Where and when this power is delegated it still remains with the centre and can be recalled to the centre or redefined. Therefore it is meaningless to have a unitary State only in name.” 

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The two Zambian lawyers said: “The Government does not seem to fully comprehend the meaning and significance of devolution. Successive constitution-making processes in Zambia have confused devolution of central government administrative functions from the centre, for example, provincial ministers appointed from the centre) with devolution of actual governmental power to local communities, in other words, devolution of constitutional authority and governmental power to democratic sub-national entities within a state, a structure which involves the creation and sustenance of such entities as semi-autonomous entities with respect to their authority, responsibility, finance and human resources and accountability arrangements),” they said.

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“Strangely, the current process is not guided by an understanding of the abundant best practices in Africa and the rest of the world which have informed recent successful constitution-making processes elsewhere, such as in Kenya, South Africa, Uganda, and Namibia to name just a few countries that have recently concluded successful constitution-making processes; further, the process has no timeline for its work, thereby making it open to abuse by those who want to exploit the process to advance their accumulation agendas. As past Zambian processes have demonstrated time and time again, in constitution making, it is unwise to have an open-ended process.”

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And the two experts noted that the process government had taken in enacting a new constitution showed that it had not learnt anything from past mistakes.”

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Ndulo mainimage Diaspora Zambian constitutional lawyers castigates constitution making processFor the record: Professor Muna Ndulo is an internationally –recognized scholar in the fields of constitution making, governance and institution building, human rights and Foreign Direct Investments.

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He is a Professor of Law Cornell Law School and Director of the Cornell University’s Institute for African Development.

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He is Honorary Professor of Law, Faculty of Law, University of Cape Town. He has acted as consulted to the African Development Bank (ADB), World Bank, Economic Commission for Africa (ECA), United Nations Development Program (UNDP), National Democratic Institute (NDI) United Sates Institute for Peace (USIP) and International Development Law Organization (IDLO).

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He has acted as consultant to the Kenya 2010 Constitutional Process, Zimbabwe Constitutional Process, Somalia and Sudan.

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Professor Chaloka Beyani is one of the three foreign experts who sat on Kenyan Committee of Experts (CoE) on the Constitutional Review. Chaloka has wide experience in international human rights law.

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Dr Chaloka Beyani Diaspora Zambian constitutional lawyers castigates constitution making processHe has served as legal advisor and expert for the Office of the High Commissioner for Human Rights, the Office of the High Commissioner on Refugees; the World Health Organization; the United Nations Population Fund; United Nations Development Fund for Women; the European Union; the Commonwealth Sec¬retariat and the African Union. He is a law graduate of the University of Zambia from where he obtained his LL.B in 1982 and LL.M in 1984. He also holds a D.Phil obtained from Oxford University in 1992. 

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