As the GPA constitution-making process approaches its final point whose conclusion is made more urgent by the looming general election due within six months under the current or a new constitution, the GPA principals should be commended for their progressive decision to take the July 18 Copac draft constitution and the unpublished Copac National Statistical Report to the Second Stakeholder Conference expected to be held in the next two or so weeks.
Report by by Prof Jonathan Moyo
The decision is significant not only because it is based on a useful distinction between “process and content” issues surrounding the Copac draft but also because it leaves as water under the bridge some falsehoods that had clouded the constitution-making process with rank confusion. In this connection, six considerations are notable.
In the first place, and notwithstanding media grandstanding by the two MDC formations which betray their inexperience and incapacity to govern, no deadlock has been declared in the constitution-making process by any of the GPA parties. Everything is still on track. Indeed, all serious indications so far are that the broad-minded amendments proposed by Zanu PF have triggered a looming consensus among the GPA parties not least because the amendments are supported by Copac’s unpublished National Statistical Report.
In the second place, it is now common cause that the July 18 Copac draft is necessarily subject to amendment and that it will have to be amended if there’s to be a referendum for a new constitution because the draft is not only just shoddy, as has been pointed out by everyone who has read it, but also because it does not reflect the views of the people on fundamental issues which among others include strong support for the unitary state based on decentralised and not devolved power; assertion of the supremacy of the people as the makers of their constitution that serves as the supreme law of the land; respect, promotion and defence of the values and ideals of the liberation struggle as the most pervasive pillar of the proposed constitution to bind all state institutions and public officials; overwhelming opposition to homosexuality; total support for the irreversibility of the historic land reform programme along with indigenisation and economic empowerment; opposition to dual citizenship for citizens by descent or registration; a meaningful and functional separation of powers consistent with a unitary state that vests executive, legislative and judiciary authority with the people in a manner that creates neither an imperial nor clerical President; rejection of importing institutions such as the so-called National Prosecuting Authority and Constitutional Court and formidable support for traditional leaders, institutions and authority.
In third place, and even though they have the final say on whether to give the Copac draft a green or red light, it would have been unfair and wrong for the GPA principals to take final positions on the Copac draft constitution without the benefit of the views of the various stakeholders that participated in the First Stakeholder Conference out of which the all-inclusive thematic committees were formed.
Why 2nd stakeholder conference is necessary
It is necessary for the Second Stakeholder Conference to be held in order to enable other voices besides the GPA political parties to express their views on the Copac draft constitution. The Second Stakeholder Conference is therefore a very important and an unavoidable process issue that the GPA principals must honour in terms of Article VI of the GPA regardless of their respective positions on the content of the July 18 Copac draft constitution. The important question about the final positions of the GPA parties on the Copac draft will be resolved one way or the other only after and not before or during the Second Stakeholder Conference, which will serve not as a debating forum or decision-making body but only as a feedback platform.
GPA principals have the mandate to amend draft
By agreeing on the Second Stakeholder Conference to get feedback from non-GPA views on the Copac draft against the background of the Copac National Statistical Report, the GPA principals have effectively confirmed that the July 18 Copac draft constitution is not “final” but is subject to amendment before it goes to Parliament before and after the referendum. Only the GPA principals can make the amendments given that Copac has finished and submitted its draft.
In the fifth place, and arising from the foregoing and as recently confirmed in public by the Clerk of Parliament, the constitution-making process is not and has not been a Parliamentary process. Rather, it is and has been entirely a GPA process. This is why its description and procedures are only described and detailed in Article VI of the GPA signed by GPA principals and nowhere else. There is no Standing Rule or Order of Parliament, motion in Parliament or decision of Parliament’s Standing Rules and Orders Committee (Sroc) establishing Copac. Indeed, it is important to note that there is no other law establishing Copac besides Article VI of the GPA. With the exception of Article XX, the GPA is only a political agreement between Zanu PF and the two MDC formations and is not part of any law of the land.
The bottom line therefore is that Copac is a GPA process. This process is accountable to the GPA principals who signed the GPA on September 15 2008. Only the GPA principals can move the Copac process forward if and only if there’s agreement to do that. Parliament will become involved only if the GPA principals agree on a New Constitution Bill and when that agreed Bill is officially tabled in Parliament by the government.
In the sixth place, and those who have jumped the gun to announce their “yes campaigns” should take note, there is absolutely no circumstance under the sun in which Zanu PF can be expected to support or allow the passage in Parliament of a draft constitution that does not contain or reflect the views of the people gathered during the Copac outreach programme as contained in the National Statistical Report. While the two MDC formations might have no problems with selling out as creations of foreigners, Zanu PF is an indigenous party and has a historical duty and obligation to represent and defend the interests and views of the people especially on something as fundamental as a new constitution.
By the same token, only foolish people will expect President Mugabe to put before the nation a referendum on any new constitution that he as Head of State and Government and Commander-in-Chief of the Defence Forces, is not proposing. It should be clear to all and sundry that, on behalf of their political parties, the GPA principals will have two choices after the Second Stakeholder Conference: either to agree on some amendments to the July 18 Copac draft to incorporate the views of the people and move towards a referendum, or agree to disagree, in which case there would be a deadlock. If that deadlock is not resolved there will be no referendum but elections under the current constitution.
The success of the GPA constitution-making process is still very possible but it depends on the mutual seriousness and co-operation of the GPA parties.