Zanu (PF)’s new draft – now what?

Without being too simplistic, there appears to be yet another opportunity for a breakthrough on the Zimbabwe constitution drafting crisis since Zanu (PF) has finished its “new” draft (see Daily News, “Zanu (PF) produces its ‘new’draft,”17/08/12).

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As I once said in 2010 that there is now a compelling case for alternative constitutions, recent developments seem to suggest this may be a worthwhile option (See “Zimbabwe: A Compelling Case for Alternative Constitutions,” Sokwanele, 13 August 2010).

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Originally, the idea of alternative constitutions was made by the Zimbabwean newspaper in its online edition saying: “Instead of yes or no, let the choice be for version A, B, or C. This way, whatever comes out of the whole exercise will be a better gauge of public opinion and will lead to a positive step forward – rather than yet another step backwards for Zimbabwe,” (The Zimbabwean 8 April 2010).

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What makes us think it’s possible?

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According to Veritas Constitution Watch 15/08/12, Rugare Gumbo said “The constitutional draft is not final and we will not go to a referendum without amendments. If they (the MDC formations) want, they can go it alone. We want to hammer a draft that is acceptable to all and not just two parties”.

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MDC-T’s spokesperson Douglas Mwonzora said: “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.”

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Welshman Ncube who leads his MDC formation said: “If they (Zanu (PF)) 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.”

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What would make a draft charter more appealing than the other?

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As I said in the article referred to above in 2010, key issues widely expected in any proposed constitution for Zimbabwe include: a commitment to democratic and Christian values, accountability at all levels, a unitary government, the separation of powers, an independent judiciary and freedom of the press.

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Also important would be doing away with racial discrimination in its totality, providing for devolution, for dual citizenship for all including those in exile and the right of the Diaspora to vote, safeguarding human and property rights, upholding the rule of law, respecting international treaties, a transparent land reform programme, a state apology and compensation for victims of Gukurahundi and Murambatsvina. To unlock Zimbabwe’s rise to becoming an African tiger economically, any draft constitution need to provide for fair compensation to victims of 2008 violence and for those whose farms were seized especially for their movable property and improvements.

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What is blocking progress on compensation is sheer greed and selfishness by some short-sighted and vindictive hardliners masquerading as revolutionaries, otherwise the resources could be successfully sourced by any government from the international community after free and fair elections.

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How would it work?

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Voters would be asked to make a choice from say two or three draft constitutions listed in the ballot paper, for instance Draft A proposed by MDC-T, Draft B proposed by MDC (Ncube), Draft C proposed by ZANU-PF. So voters would then rank their preferences from 1 to 3. The draft with the majority votes wins the referendum.

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How to ensure nobody vetoes the draft constitution

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Zimbabweans could do what the Kenyans did by passing an Act which ensured that if there was a YES vote at the referendum, the constitution would automatically come into force 14 days later. Probably ruling out any veto through the Act could be better.

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The wording of the Act could be amended to say for example, this Act provides that the draft constitution with the majority of votes will come into force 14 days later.

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Why would this be better than a decision by the principals?

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As in the past, anything left to the principals tends to result in a Zanu (PF) victory. While evidence abounds, for reasons of space, we will look at only a few examples.

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In September 2011, Justice Minister reportedly said that Parliament should stop pushing for amendments to the draconian Public Order and Security Act (POSA) as the proposed changes were being handled by the principals of the Global Political Agreement (GPA) (The Zimbabwean, 09/09/11).

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That sealed the death of all efforts including parliamentary, to amend POSA let alone have it repealed as previously provided for as a target in the Government Work Plan.

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In December last year, Prime Minister Morgan Tsvangirai said the inclusive principals had agreed that millions of Zimbabweans living in exile will cast the ballot (The Financial Gazette, ‘Politics hinder Diaspora’ right to vote”, 30/05/12).

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Then Zanu (PF) Justice Minister Patrick Chinamasa later said he had 101 reasons for denying the diaspora voting rights (New Zimbabwe, “101 reasons exiles can’t vote,” 11/07/12). As a result, the draft constitution does not provide for the diaspora vote.

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Contrary to media reports in March that the principals had ordered the reconstitution of the Broadcasting Authority of Zimbabwe (BAZ), they have still not yet issued a joint statement to that effect. Meanwhile, the winners are already broadcasting.

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What is the advantage of alternative constitutions?

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Firstly, they are already there. Secondly, the two sides appear unwilling to re-negotiate. Thirdly, to avert a deadlock that could potentially end in violence. Fourthly, the coalition parties would be able to incorporate their original ideas and see which draft will be chosen. Finally, principals should not write the constitution.

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Clifford Chitupa Mashiri, Political Analyst, London, zimanalysis2009@gmail.com

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