After three years in the making, Zimbabwe’s proposed 150-page draft constitution was deemed unacceptable by President Robert Mugabe’s ZANU-PF party and rejected by civil society. It was endorsed by ZANU-PF’s political opponents.
The adoption of the new constitution is a critical step towards holding free and fair elections after the 2009 formation of the unity government. The unity government emerged in the wake of the violent 2008 polls that killed about 200 people and saw ZANU-PF lose its parliamentary majority for the first time since the country gained independence from Britain in 1980.
Brokered by the Southern Africa Development Community (SADC), the unity government allowed Mugabe to retain the presidency while appointing Movement for Democratic Change (MDC) leader Morgan Tsvangirai as prime minister and requiring, among other things, a land audit, electoral reform and the drafting of a new constitution – all of which have become divisive issues.
A new constitution is seen as vital to create stability in a country that has suffered several bouts of political violence in recent years.
ZANU-PF spokesman Rugare Gumbo announced on 9 August, after a marathon meeting by its central committee, that it could not accept the draft constitution without changes to several clauses. “The party is expecting the amendments to be factored in by Wednesday next week [15 August], when the politburo meets to finalize its position on the draft constitution.”
Among their objections, Gumbo said the proposed constitution would dilute the authority of traditional leaders, who have been strong supporters of ZANU-PF. It would also allow the party with the majority of parliamentary seats in a province to appoint provincial governors, previously the prerogative of the presidency.
ZANU-PF also objected to the provision that parliament, not the presidency, would approve the deployment of troops both inside and outside the country.
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The draft constitution also removes the presidential preserve to appoint judges and instead allows for public hearings under the jurisdiction of a Judicial Services Commission.
ZANU-PF also criticised the draft’s proposed right to hold dual citizenship and expressed concerns about the reforming of the security services.
A draft constitution clause said that “neither the security services nor any of their members may act in a partisan manner, further the interest of any political party… [and] they must not be active members of a [political] party.” High ranking defence force commanders have previoulsy said they would refuse to accept election results that did not return ZANU-PF to government.
A clause in an earlier draft - since removed - prevented anyone above the age of 70 or who had served two terms of office from running for the presidency. Mugabe is 88 and has been president for 32 years.
Both factions of the MDC, one led by Tsvangirai and the other by industry minister Welshman Ncube, have accepted the draft constitution in its current form and said they would campaign for a Yes vote in a referendum for the constitution to replace the 1979 Lancaster House agreement, which was drawn-up to end white-minority rule in the former Rhodesia.
If agreement is reached on the draft constitution by all three political parties, a second all-stakeholders conference - including participation by the public - will be held before the draft is tabled in parliament for debate and approval. It will then be voted on by referendum.
Finance minister and MDC-T secretary-general Tendai Biti told IRIN the constitution provided for a comprehensive bill of rights and it “makes provision for free and fair elections and sets definitive time periods in which elections must be held”.
Ncube warned at a recent press briefing against any tampering of the draft constitution. "We have adopted the document, although it is not the best as it was crafted under give-and-take conditions."
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Shakespeare Hamauswa, of the University of Zimbabwe’s political science department, told IRIN it was not a perfect draft, but “if you look at the language in the preamble, it is talking of transparency, good governance and accountability. These are all good tenets of democracy and if the draft constitution is adopted, we are going to witness a new era in the country characterized by transparency, fairness and openness.”
But Lovemore Madhuku, chairman of the NGO National Constitutional Assembly (NCA), which campaigns for a constitution derived from broad-based public consultation and is an umbrella organisation for labour, student and women groups, churches and human rights organisations, said that they would advocate for a No vote in the referendum.
“There is no basis of supporting this document, which is being decided by politicians. We are compiling a list of defects in the draft constitution and will present it to the public,” he said.