Government gazettes Amendment 17 bill

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

TAGS: PGOV PREL PHUM ECON ZI

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)