And as is usually the case, after the dust had settled and the nation was allowed to take a closer look at what was really going on, it was discovered that the opposition was screaming wolf when all that was in sight was a sheep.
For any piece of legislation to be brought before Parliament, there are certain unavoidable processes that have to occur first.
The most obvious is that a need for the law in question has to be expressed. This means somebody — whether Government, political parties, civic bodies, the judiciary, MPs, business, the military or just about anybody for that matter — has to present a case for the need for a certain law or amendment to be made. In the present case, the three political parties expressed the need through the agreement signed on September 15.
The need expressed by the parties is taken as a reflection of the general will of the people of Zimbabwe because the three sides represent the majority view of the populace so there is no questioning the generality of the need for a Constitutional Amendment.
After the need has been expressed and accepted by the generality of the population there are two things that can then happen.
Either an interest group can help craft a Draft Bill for consideration and have it presented in Parliament by an MP of a party of their choice who will then lay it before the Speaker as a Private Member’s Bill.
The other alternative is that the Government initiates what can be referred to as a policy paper or a white paper (or yellow, or green, or whatever colour depending on the country) that outlines the principles that should be reflected and captured in the Draft Bill.
It is worth noting that in Zimbabwe since 1980 we have never had a single successful Private Member’s Bill and the most recent such incident that comes to mind is when Professor Jonathan Moyo tried to push his through Parliament as an Independent MP. From Independence to the present, all legislation — including Constitutional Amendments — have been sponsored by Government through the Ministry of Justice, Legal and Parliamentary Affairs (by this name and by the other titles that ministry has had over the years).
The Government’s policy paper sets the parameters within which the drafters will operate and in the present case these parameters are provided by the agreement signed on September 15.
That is why Government spokesperson Cde George Charamba has said people should not expect Constitution of Zimbabwe Amendment Number 19 Bill and Act to deviate in any way from the agreement. The items agreed upon in September are the ones going to be enshrined within the Amendment and about this there should be no mistakes made.
After the white paper has been initiated, the drafters turn this policy document into the legal paper that is known as the First Draft.
The First Draft is given to other experts, drawn from the Ministry of Justice, the Attorney-General’s Office and other institutions and bodies that the State feel would add value to the process.
The purpose here is to tighten the document and the outcome is a draft that is then taken to the Cabinet Committee on Legislation, which in Zimbabwe normally meets every Thursday.
This Committee comprises the Minister of Justice (obviously) the Attorney-General (who is an Ex-Officio member of Cabinet), the head of the portfolio directly affected by the proposed legislation and other individuals who are drawn in for their various expertise.
At present these others include Cde Emmerson Mnangagwa, Cde Paul Mangwana and other officials with skills that are relevant to legislation drafting.
This is the manner in which the system criticises itself, pokes holes into the document, probes weak areas, assesses strengths, points out what needs to be tightened, cross-checks to ensure the principles as outlined in the policy paper have been preserved and generally debates the draft before them as an executive.
This is the first formal debate on the proposed piece of legislation and the Committee acts as Devil’s Advocate to ensure they are not in contravention of other neighbouring laws and the Constitution. When the Cabinet Committee on Legislation is satisfied, the Minister of Justice formally presents the latest draft to the full cabinet.
And the previous process is repeated all over again to further tighten the document and prepare the executive as a single body on the arguments behind the proposed new law.
A Cabinet caucus can be asked to meet to separately subject the draft to further scrutiny before the executive puts its seal of approval on the document paving the pay for the Head of State and Government to gazette it and allow for formal Parliamentary debate after the stipulated period of time enshrined in the law.
The Parliamentary Committee on Standing Rules and Orders then checks the compliance of the Bill with the Constitution.
From there it is a matter of debates and marshalling support and then finally voting. For ordinary pieces of legislation, the passage into law requires a simple majority and the President’s signature.
For a Constitutional Amendment, this requires at least a two-thirds majority and the Presidential signature. When Cabinet is not in session it does not mean the State cannot initiate and steer through legislation because there are other options.
One of these is the use of Presidential Powers and this means President Mugabe can invoke this executive authority vested in him by the Constitution to make Morgan Tsvangirai a Prime Minister and duly swear him into office.
This essentially means the Government can make such appointments as those being sought by the opposition ahead of the law.
In law and in practice, there is nothing remiss in what the State has done by way of coming up with a draft and presenting it to Cde Mbeki within the spirit of tripartism as facilitated by the former South African President.
This writer knows for a fact that the State actually started working on its drafts soon after the agreement was signed because the agreement provides the guidelines for the Constitutional Amendment. The document that MDC-T has produced is, another fact, an opinion paper which they may or may not submit as a Private Member’s Bill in Parliament.
It is within the spirit of tripartism that their document will even be looked at in the first place by Cde Mbeki and anyone else among the negotiating parties who may wish to do so.
The fact is their position paper cannot dictate the letter of the draft though it could be read within the framework and spirit of tripartism that we are told President Mugabe is so committed to.
And another fact is — politically speaking — this Amendment is for the benefit of the opposition and not for Zanu-PF. The ruling party can certainly not be desperate to see this Bill becoming an Act and it is therefore surprising that the opposition has adopted the attitude it has over the matter because it is in their interests to ease this thing through with as little hassle and antagonism as possible.
From a political perspective, the Bill seeks to accommodate the opposition within the structures of State and in this regard, the onus is on the MDC to see to it that this proposed legislation becomes law.
It is consequently weird to hear Tendai Biti, a whole lawyer, opt for childish bellicosity when he should have, like Prof Arthur Mutambara’s party did, approach the matter with the sensitivity it requires. This writer has been made to understand that constitutional expert Prof Welshman Ncube, Mutambara’s secretary-general, had an input in the draft submitted to Cde Mbeki and Biti would have had the same opportunity had he not opted for the fatuous and ill-defined posturing that characterised his public statements soon after the Sadc Extraordinary Summit.
If MDC-T are not careful they could find their draft, especially if it tries to re-negotiate positions set out in the September 15 agreement, dying a quiet and ignominious death.
The time for needless politicking is over and MDC-T is best advised to realise that the workings of State, bureaucracy and officialdom are different from the inexperienced political rollicking of an opposition party that is yet to lose its governmental virginity. The Herald (Zimbabwe State newspaper)