The government published Constitutional Amendment Bill number 17 on 15 July 2005 to among other things transfer title of the state land acquired during land reform and eliminate judicial challenges to land acquisitions.
The bill also sought to reintroduce the upper house, the Senate.
Movement for Democratic Change Shadow Minister for Justice David Coltart told United States embassy officials that the party was developing a detailed counterproposal that MDC MPs planned to present to Parliament as amendments to the bill.
Ed: Amendment 17 which saw the reintroduction of the senate was the final blow to the MDC and led to the split with one faction supporting party president Morgan Tsvangirai and the other supporting secretary general Welshman Ncube.
Full cable:
Viewing cable 05HARARE1156, CONSTITUTIONAL REFORM BILL GAZETTED
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C O N F I D E N T I A L SECTION 01 OF 04 HARARE 001156
SIPDIS
AF/S FOR B. NEULING
NSC FOR SENIOR AFRICA DIRECTOR C. COURVILLE
TREASURY FOR J. RALYEA
E.O. 12958: DECL: 12/31/2010
SUBJECT: CONSTITUTIONAL REFORM BILL GAZETTED
REF: A. GABORONE 1092
¶B. HARARE 804
Classified By: Charge d’Affaires, a.i., Eric T. Schultz under Section 1
.4 b/d
——-
Summary
——-
¶1. (U) The GOZ published a bill to amend the constitution on
July 15. Proposed amendments include: transfer of title to
the state of land acquired during land reform; elimination of
judicial challenges to land acquisitions; the addition of a
Senate to the legislature; additional restrictions on freedom
of movement; and changes to the bodies that run elections.
Civil society and the opposition MDC have been vocal in
objecting to the bill, arguing that it would abridge human
rights and further harm the country,s economy. Critics also
object to constitutional changes via a parliamentary bill,
arguing that the constitution requires a major overhaul with
broad input from citizens and a referendum. End Summary
————–
Status of Bill
————–
¶2. (U) The GOZ published the much-anticipated Constitution of
Zimbabwe Amendment (17) Bill in the government gazette on
July 15. The Government submitted the bill to Parliament on
August 18. The Parliamentary Portfolio Committee for
Justice, Legal and Parliamentary Affairs held a public
hearing in Harare on August 4 at which statements from the
public were read and accepted. The bill will have two
additional readings in Parliament before it comes to a vote.
ZANU-PF,s two-thirds parliamentary majority, secured in the
tainted March elections, allows it to change the constitution
while avoiding a public referendum. If passed, the changes
would be the 17th amendment to the 1979 Lancaster House
constitution.
¶3. (C) MDC Shadow Minister for Justice, Parliamentary and
Legal Affairs David Coltart told poloff on August 16 that the
MDC was developing a detailed counterproposal that MDC MPs
planned to present to Parliament as amendments to the bill.
(Note: The MDC used this tactic when last year’s Electoral
Bill was before Parliament, and their amendments stimulated a
great deal of debate and some eventual changes to the bill).
He said the counterproposal was not final and he could not
yet discuss its details.
——————————————— ———-
No Court Review of Land Reform, State Takes Land Titles
——————————————— ———-
¶4. (U) The bill,s most controversial reform is a new section
to the constitution, which grants title to the government of
all agricultural land acquired in the past under the land
reform program and any land that may be acquired in the
future. Those who have previously been allocated land under
the program would hold a 99-year lease that could be
inherited but not otherwise transferred without permission of
the state. It would remove the right of landowners whose
land has been acquired to challenge the acquisition in court.
To acquire land in the future, the government would only
need to publish an acquisition notice, and the title would
automatically revert to the state after 30 days, with no
compensation due the former owner except for improvements.
The government could acquire any agricultural land for any
purpose.
¶5. (U) At the August 4 hearing, speakers challenged this
clause of the bill on the grounds that it would restrict
property rights. The term &agricultural8 is not defined.
The Human Rights NGO Forum maintained it could be interpreted
in the future to include any property, even houses and
businesses within cities. The Law Society said that
eliminating judicial review of acquisitions would further
erode public confidence in the courts, which was already
suffering under the perception that the judicial system was
used for political ends. The Commercial Farmers Union
commented that removing legal challenges would prevent
landowners from resolving mistakes if the state had not
intended to acquire their land.
¶6. (C) Critics also noted that denying title to individuals
would further harm the economy because individuals allocated
land could not use it as collateral for loans to purchase
agricultural inputs or make improvements. Justice for
Agriculture argued that transferring title to the government
would move the country,s economy backward to a feudal system
while the rest of the world was moving toward the freehold
system that had made developed countries so successful.
Coltart told poloff that MDC leaders had pointed out to
President Mbeki that the loan under discussion from South
Africa would not do much to aid Zimbabwe,s economy when the
GOZ was proposing constitutional reforms that would do
further damage.
¶7. (U) Relevant to the bill’s land tenure provisions, the
GOZ’s Mid-Term Fiscal Policy Review presented to Parliament
on August 16 (septel) noted that investment on allocated
farms was being undermined by uncertainty over security of
tenure. It reiterated that the government would be issuing
99-year leases, which it described as giving confidence to
the financial sector to finance agriculture. Details of the
terms of 99-year leases were not provided.
——————–
Return of the Senate
——————–
¶8. (C) The bill would also reintroduce a 66-member Senate,
comprised of five members elected from each of the ten
provinces, the president and deputy president of the Council
of Chiefs, eight chiefs elected by the Council of Chiefs, and
six appointed by the President. Speakers at the August 4
hearing objected to the number of appointed Senators and
expressed concern that Mugabe would appoint failed
parliamentary candidates. The Zimbabwe Election Support
Network (ZESN) suggested an 80-member Senate to be popularly
elected but added that now was not the right time to take on
the expense of adding a Senate when the country had other
priorities and resources were scarce. Coltart told poloff
that a bicameral legislature might be good but that it should
only be done as part of a complete overhaul of the
legislature. The Senate proposed in the bill did nothing to
address the fundamental imbalance of power between the
executive and legislature. He added that, based on last
year,s budget, establishment of the Senate would cost at a
minimum ZWD 30 billion (roughly USD 1.7 million).
——————————–
Freedom of Movement Restrictions
——————————–
¶9. (U) The bill would also amend the section of the
Constitution dealing with the ability of the government to
restrict freedom of movement. Currently, the constitution
does not limit the right to leave the country. The bill
would permit limitation of the right to leave based on
national interest. The preamble to the bill states that
terrorism is an example of the &type of mischief that may
justify the imposition of the restrictions on the freedom of
movement.8
¶10. (C) Coltart said it was clear the government was laying
the groundwork for a law that would make it easier to deny
and revoke passports of prominent members of civil society
who traveled abroad and publicized the true state of affairs
in the country. He said the GOZ considered this an important
step in quashing all flow of information out of the country.
The use of the word &terrorism8 in the bill was intended to
hide the real motive behind the amendment and make it
palatable to foreign governments. On August 19, Jenni
Williams of Women of Zimbabwe Arise! (WOZA), who has been
invited to speak in the U.S., quipped to poloff that she
needed to do all her travel now before the bill was passed
and the government confiscated her passport. She said that
the government wanted to prevent civil society from raising
awareness about the country,s human rights situation and
mentioned the workshop she and other Zimbabwean human rights
activists attended in Botswana where the Zimbabwean
ambassador denounced the speakers for telling &lies8 about
their country (ref A).
—————-
Electoral Reform
—————-
¶11. (U) The bill would abolish the Electoral Supervisory
Commission (ESC), currently a constitutional body, and
consolidate its functions with the Zimbabwe Electoral
Commission (ZEC), which was established by law in December
¶2004. The ESC could not be abolished by the law creating the
ZEC, because it was established by the constitution, and the
law was not clear as to what responsibilities the ESC would
retain. The new, slightly expanded ZEC would consist of a
chair, appointed by the President in consultation with the
Judicial Service Commission, and six additional members,
appointed by the President from a list of nine nominees
submitted by the Committee on Standing Rules and Orders. The
ZEC would prepare for, conduct, and supervise elections and
registration of voters.
¶12. (U) Most participants in the hearing applauded
consolidating electoral functions in one organization but
raised other objections. At the hearing, ZESN stated that,
even with the welcome removal of the ESC, the ZEC was still
flawed because not all electoral functions would devolve to
the new ZEC as there would still be a separate Registrar
General. (Note: The Registrar General has played a central
role in ruling party manipulations of the political process
during past elections. End note) Furthermore, a new ZEC
should be independent and free of politics. ZESN and the
Center for Peace Initiatives in Africa offered alternative
means of choosing members, with different combinations of
Parliament, civil society, or foreigners participating in
selection.
——————————————-
Civil Society Objects to Piecemeal Approach
——————————————-
¶13. (U) There have been strong calls from civil society for a
new constitution dating before the GOZ,s failed 2000
referendum on a new constitution, but most civil society
leaders with whom we have talked agree that changing the
constitution via a parliamentary bill is a flawed approach.
The National Constitutional Assembly (NCA), which has been
arguing for a new constitution since it was formed in 1997,
published a statement before the March elections cautioning
the government against imposing a new constitution through
Parliament rather than holding a new referendum. At the
August 4 hearing, the Women in Politics Support Unit
criticized the government for not consulting the public more.
Other groups such as ZESN and ZLHR said that the current
constitution could not be fixed and an overhaul was needed.
The NCA, which did not participate in the parliamentary
hearing, continues publicly to call for an inclusive process
to support a new constitution.
——-
Comment
——–
¶14. (C) Despite the objections of civil society, the GOZ is
likely to push this bill through Parliament in something like
its current form. After the humiliating failure of the 2000
referendum on a new constitution, Mugabe is not likely to
countenance any kind of inclusive constitutional amendment
process again. However, given the experiences of the two
electoral bills last year and the NGO bill this year, there
may nonetheless be a vigorous debate in Parliament. That
debate will likely be fueled by arguments that undermining
the security of titles could deal a further blow to the
failing economy. This argument may get the attention of
ZANU-PF legislators, many of whom are also beneficiaries of
allocated farms and may be concerned about the prospect of
not holding title to them. There is likely to be significant
debate within ZANU-PF regarding the costs of this bill, but
in the end ruling party MPs will likely toe the line and pass
the bill.
SCHULTZ
(33 VIEWS)
