On 15 September, 2008, President Robert Mugabe was forced into a political union with a bitter rival: Morgan Tsvangirai of the Movement for Democratic Change (MDC-T). This move culminated in the Global Political Agreement (GPA), the foundation of the current coalition government of ZANU-PF, MDC-T and the smaller MDC faction MDC-M.
This uneasy political marriage was brokered by the Southern Africa Development Community (SADC) and followed the bloody 2008 presidential elections in which Tsvangirai, having won the first round, withdrew from the run-off citing violence against his supporters. In addition to restoring the economic fortunes of the country, the coalition government tasked itself with drafting a new constitution.
However, while the GPA has been credited with beginning to restore the country’s ruined economy, the same cannot be said of its ability to draft a new constitution. The process has dragged on for over four years and been characterised by bickering, insufficient funding and poor outreach mechanisms.
The process has also been typified by political interference. The Zimbabwe Constitution Select Committee (COPAC) has in principle led the constitution-making process but tellingly it was the leaders of the three main political parties – Mugabe, Tsvangirai, and Ncube – that announced the completion of the draft constitution in January.
The first assault on the COPAC process by politicians was when leaders of the three parties established, completely independently of COPAC, at least two other committees to resolve contested issues. Not only was COPAC’s stake in the process significantly compromised, but these other committees lacked the relevant expertise, failing in their tasks, and even failing to appear at scheduled sessions. As a result, political leaders, ostensibly led by President Mugabe, took it upon themselves to resolve disagreements.
Furthermore, when a draft constitution was published in July 2012, it and its amendment process soon became politicised. The two MDC factions quickly endorsed it, but President Mugabe, in a manner typical of ZANU-PF’s political playbook, set the process back by rejecting several provisions in it. These included provisions on devolution, presidential running mates, the establishment of a constitutional court, a prosecuting authority, a clause on a land commission, same-sex marriages, and foreign funding of political parties. To add insult to an injury, ZANU-PF then came up with a raft of other issues that it insisted had to be included such as restoring presidential powers and introducing black empowerment.
An infuriated Tsvangirai claimed that ZANU-PF’s proposed draft was not “an amendment to the draft but a completely rewritten document, which is at variance with what the people said”. In the end however, many of ZANU-PF’s thirty amendments – many which were not even raised in the COPAC’s ‘National Report’ – were eventually accepted.
The new constitution has now been adopted by parliament, and the main political parties are encouraging Zimbabweans to vote ‘Yes’ in the upcoming referendum on 16 March. But with the process having been driven by compromise between political parties rather than popular consultation, it may not have captured the aspirations, wishes and expectations of the masses.
It is little wonder then that some sections of Zimbabwe expressed dissatisfaction soon after the publication of the document. Lovemore Madhuku, chairman of National Constitutional Assembly (NCA), an influential civil society organisation when it comes to constitutional matters, told the media that his organisation was breaking rank with the majority of civil society groups who have warmly embraced the new constitution.
The NCA’s objection is that the process was hijacked by the main political parties before it even started. Once politicians got involved, the NCA claims, the constitutional process inevitably became an exercise in balancing the interests of political elites.
Simba Makoni, leader of Mavambo Kusile Dawn (MKD), the political party which took 10% of the votes in the first round of the 2008 presidential elections, has also vowed not to back the new constitution. He contends that there is no difference between the recently completed draft and the current constitution. Although this is an exaggeration, his protestation points to some of the core problems with the draft constitution.
In particular, its inaction in curbing presidential powers has been seen as its biggest failure. The minimal changes to presidential powers still allow lots of executive power to be held by one person, and with minimal accountability. For example, the president can still deploy troops within the country without prior parliamentary approval. This means that instances such as Operation Murambatsvina, where soldiers were reportedly deployed in and around Harare in 2005 to target opposition voters, could be repeated.
Amidst the furore, it is perhaps easy to forget that Zimbabwe already has a constitution – one that has been changed on numerous occasions since constitutions are after all subject to amendments. Today’s constitution, for example, has provisions for an executive president, two vice presidents, a prime minister, two deputy prime ministers, and an American style senate - none of which were in the original document that was devised at independence. For this reason, the drafting of a brand new constitution was not a necessary task to set to coalition government – especially since, if there is anything that Zimbabweans should have learnt since 1980, a constitution is always at the mercy of those who wield power.
In a telling announcement, for example, President Mugabe reassured traditional leaders in the south-eastern province of Masvingo that his party will make changes to the document soon after the elections that he is confident of winning:
"We agreed on the constitution, [but] not all that we wanted came out. It was a compromise", Mugabe said. "After the elections, we will amend the constitution to fit in some of your views. Right now we must get rid of this three-headed creature."
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