MDC favoured people-driven constitution

The Movement for Democratic Change favoured a people-driven constitution that was not tied to any pre-existing documents while the Zimbabwe African National Union-Patriotic Front preferred the Kariba draft which had been agreed by the three parties in 2007 but never adopted.

The Kariba draft would have strengthened President Robert Mugabe and allowed him to die in office as it would have enabled him to stand for office for another to terms.

Minister of Constitutional and Parliamentary Affairs Eric Matinenga said the Kariba draft would also be a step backwards as it did not allow for a Prime Minister, thus removing an important check on presidential authority.

The United States system has a president and no prime minister while the British system has a prime minister and no president.

Though the inclusive government went for the people-driven constitution at the end and obtained people’s views, the MDC is now back-tracking and trying to incorporate issues that were rejected by the people.

ZANU-PF is accused of intimidating people during the outreach programme so that they could air the party’s views in the new constitution.

Full cable:

Viewing cable 09HARARE570, CONSTITUTIONAL REFORM IN ZIMBABWE ON SHAKY GROUND

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C O N F I D E N T I A L SECTION 01 OF 04 HARARE 000570

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STATE PASS TO USAID FOR J. HARMON AND L. DOBBINS

STATE PASS TO NSC FOR SENIOR AFRICA DIRECTOR MICHELLE GAVIN

E.O. 12958: DECL: 07/10/2019

TAGS: PGOV PHUM KDEM ZI

SUBJECT: CONSTITUTIONAL REFORM IN ZIMBABWE ON SHAKY GROUND

Classified By: CDA Katherine Dhanani for reason 1.4 (b) and (d)

——-

SUMMARY

——-

¶1. (SBU) Zimbabwe is continuing to progress towards a new

Constitution, through much like the current inclusive

government, it is a process fraught with risks. Next week’s

All Stakeholders Conference will attempt to establish

thematic sub-committees charged with consulting the public on

critical issues such as checks on executive authority,

presidential appointments and term limits, and the rights of

citizens. Preventing the politicization of these committees

will be paramount in setting the stage for a democratic and

principled final draft Constitution. Already, ZANU-PF has

mobilized behind the 2007 Kariba Draft Constitution that was

signed by the three major political parties as part of the

SADC process, but never adopted. The Kariba Draft would

strengthen the president and executive branch and allow

Mugabe potentially another two terms in office. The MDC-T

supports a “people-driven” process that is not tied to any

pre-existing documents. Civil society is engaging, but

divided on the best means of influencing the process. END

SUMMARY.

——————————————— ——-

Background: The 2000 Referendum and the Kariba Draft

——————————————— ——

¶2. (SBU) On February 13, 2000, a referendum on a draft

constitution that sought to replace the Constitution

established at independence in 1979 at the Lancaster House

talks, was unexpectedly and roundly defeated as civil service

organizations, a nascent opposition movement, labor groups,

and the white-led commercial farming sector combined efforts

to reject the document. The defeat was taken as a personal

rebuff by President Robert Mugabe and was viewed as a

political triumph for the newly-formed opposition group, the

Movement for Democratic Change (MDC). With ZANU-PF

controlling all the levers of government and every seat in

Parliament, the proposed Constitution sought to maintain the

strength of the executive Presidency –though it did propose

reintroducing the position of a Prime Minister– and

controversially included a clause allowing the State to take

possession of white-owned land with compensation to be paid

by the United Kingdom. It was defeated by a vote of 55 to 45

percent, with only the ZANU-PF ethnic strongholds of

Mashonaland voting in favor.

¶3. (SBU) Over the next seven years there were several

attempts by civil society organizations and political leaders

to press for a new Constitution. However, it was not until

2007 when –as part of the SADC-sponsored negotiations

between the three primary political parties intended to set

the stage for the March 2008 presidential and parliamentary

elections– there was political party consensus on a draft

document. On September 30, 2007 at Kariba in northern

Zimbabwe, the Minister of Justice, Patrick Chinamasa

QZimbabwe, the Minister of Justice, Patrick Chinamasa

(ZANU-PF), and the Secretaries-General of the two MDC

formations, Tendai Biti (MDC-T) and Welshman Ncube (MDC-M),

agreed upon a draft Constitution ostensibly to eventually

replace the Lancaster House Constitution. The &Kariba

Draft8 was the culmination of discreet negotiations between

the three political parties and was sponsored by the then

President of South Africa, Thabo Mbeki. Primary

responsibility for drafting the Kariba document fell on six

individuals, including the three named negotiators, but

little is known about the negotiating process or general

party objectives. It was never made clear if the Kariba

Draft was to be used to further constitutional debate, to be

put to a referendum, or to be foisted directly on the public.

At the time of the negotiations, the Zimbabwean public was

HARARE 00000570 002 OF 004

ignorant of the process, resulting in vocal criticism later

by excluded civil society organizations.

——————————————-

ZANU-PF Strategy: Push for Kariba and Delay

——————————————-

¶4. (SBU) Article 6 of the Global Political Agreement (GPA)

signed on September 15 calls for a process to draft a new

Constitution and “acknowledges” the Kariba Draft. President

Mugabe has publicly stated that he and his party prefer the

Kariba Draft not merely as a reference material, but also as

the document on which a referendum should be held. The

state-run newspaper, The Herald, on June 26 quoted Mugabe as

saying, “We do not want any Constitution which is not the

Kariba Draft” and “The parties signed it, page by page. What

will happen is that the Kariba Draft will be put to the

people at a referendum and the people will decide.”

¶5. (SBU) In what has been viewed as an attempt to delay the

process, ZANU-PF requested postponement of the provincial

meetings held in June, the All Stakeholders Conference (ASC),

and the upcoming consultative outreach phase, all on the

pretext that it needed more time to mobilize its members. A

day before the ASC was scheduled to begin, ZANU-PF succeeded

in getting it pushed back to July 13 and 14. However, all

other requests for delays have been dismissed by the

Parliamentary Select Committee.

—————————————-

The Kariba Draft Would Strengthen Mugabe

—————————————-

¶6. (C) Minister of Constitutional Affairs Eric Matinenga and

University of Zimbabwe law professor Geoff Feltoe provided us

with an analysis of the Kariba draft. It would enable Mugabe

to stand for re-election for two additional five-year terms,

thus allowing him to die in office. There is also no Prime

Minister position in the Kariba Draft, removing an important

check on presidential authority. Also, consistent with the

current Constitution (prior to Amendment 19), the Kariba

Draft vests the power to appoint virtually every senior

government official, service chief (military, police, CIO),

judge, and commission head in the Presidency. Appointments

are most often made after &consultation8 with some other

individual or body. In most cases, that person or body is

also appointed by the President.

¶7. (SBU) Other noteworthy items include the Kariba Draft’s

word-for-word incorporation of the sections of the current

Constitution that deal with the right to property; it leaves

intact the State’s unchecked ability to acquire and

distribute land. It fails to protect many vital rights, such

as the freedom of the media and the right of workers to

strike. On elections, consistent with the existing

Constitution, it fails to establish an electoral commission

that is sufficiently independent by giving the President

ultimate authority in selecting commission members.

Qultimate authority in selecting commission members.

¶8. (SBU) The Kariba Draft also weakens Parliament by making

the removal of an MP automatic after he or she is absent from

21 consecutive sittings. Given Zimbabwe’s history of

violence and intimidation in the political arena, it is

possible to imagine that this change could be used to allow

the expulsion of opposition politicians after they have been

arrested or forced into hiding.

——————————————-

Can ZANU-PF Derail or Dominate the Process?

——————————————-

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¶9. (SBU) Under the terms of the GPA, the constitutional

drafting process is a collaborative effort led and managed by

Parliament, with input solicited from independent

stakeholders from civil society organizations, the legal

professions, academia, outside consultants and source

documents, and the public. Also, unlike a routine

legislative bill (that is proposed by a government Minister,

receives the consent of Cabinet, is passed by Parliament, and

then signed by the President) the draft Constitution will not

be controlled by any particular government ministry, nor will

it require the approval of Cabinet or the President.

¶10. (SBU) Further, despite the insistence of Mugabe and his

advisors on the Kariba Draft, many in ZANU-PF support a

process that considers but does not impose the Kariba draft.

For instance, Paul Mangwana, the ZANU-PF co-chair of the

Parliamentary Select Committee, stated at a Bulawayo

provincial meeting on the constitutional process, “This

process will be people driven and any draft on the new

constitution will come from the people and not from any

political party. The Kariba Draft is one such draft that

will not be used as the basis for a new constitution.” Other

ZANU-PF members on the 25-member Select Committee on the

Constitution support Mangwana.

¶11. (SBU) The next stage in the process begins on July 13

and 14 when the first All Stakeholders Conference takes place

in Harare where 4,000 delegates from nearly every sector of

Zimbabwean society will be present. This conference will

establish 30 to 40 person thematic sub-committees, drawn from

delegates at the June 24 and 27 provincial meetings, who will

be responsible for consulting nationwide constituencies over

the next four months on specific constitutional issues such

as presidential appointments, term limits, control of the

military, or a bill of rights. After this consultative

phase, the Parliamentary Select Committee will prepare a

draft. The draft will be presented at a second All

Stakeholders Conference and then debated in Parliament. From

there, the draft will be put to a nationwide referendum. If

approved, it will be voted on for passage by Parliament 14

months from now.

¶12. (SBU) The procedure laid out in the GPA lessens the

prospects that if a democratically-principled document that

checks Zimbabwe’s executive presidency emerges, ZANU-PF will

be able to outright scuttle, veto, or delay it. The greater

risk is that in each phase — consultative, drafting, debate,

referendum, and Parliamentary vote — ZANU-PF will have

opportunities to bias the process. For instance, according

to Feltoe, the thematic sub-committees that are to be formed

at next week’s All Stakeholders Conference will each be led

by an MP. Some of those MPs will be from ZANU-PF and could

attempt to coerce or intimidate responses from rural

Zimbabweans. They could also provide misleading

QZimbabweans. They could also provide misleading

constitutional materials or alter feedback. Similar

opportunities are available later in the process, including

mobilizing ZANU-PF youth and veterans to influence votes

during the referendum.

——————————————— –

NGOs Divided Over Participation in the Process

——————————————— –

¶13. (SBU) The NGO/civil society community is divided over

whether to participate in the current Parliament-led

constitutional reform process. In principle, several

prominent organizations, including the National

Constitutional Assembly (NCA) and the Zimbabwe Congress of

Trade Unions (ZCTU), oppose the process on the basis that it

is led by a Select Parliamentary Committee and therefore is

not people driven. At a July 3 to 4 convention attended by

HARARE 00000570 004 OF 004

over 230 NGOs (but not NCA or ZCTU) the participants

unanimously rejected the Kariba Draft as a basis for

constitutional reform. With regard to participation in the

constitutional process, they resolved that those NGOs

desiring to participate should do so, while those that do not

want to participate, but prefer to carry out civic education

will be free to undertake that campaign. Finally, those

wishing to boycott the process completely are entitled to

remain external critics.

¶14. (C) The NGOs resolved to hold a second convention after

the First All Stakeholders Conference to review their

position. Some delegates at the convention were concerned

that boycotting the Parliament-led constitution making

process would result in a draft that did not contain

provisions that are important to NGOs. Lovemore Madhuku,

head of the NCA, told us that he believes he can be most

effective by exerting pressure from outside the process.

Once a draft is completed, he said he and his organization

would offer constructive suggestions.

——-

COMMENT

——-

¶15. (C) Zimbabwe’s path towards a new Constitution will be a

case study in power politics. The MDC-T is putting a lot of

eggs in this basket because they see it as their best chance

to get widespread reforms passed and to cripple Mugabe’s

autocratic grip on power. Their ability to rally widespread

public support and strength in Parliament are their greatest

assets. Mugabe is aware of the risks and is pressing forward

with a multi-pronged strategy that combines politicization

and delay. He is cognizant that drafting and accepting a new

constitution would lead to elections; as long as the

constitutional process has not been concluded, elections will

not be held and he and ZANU-PF can remain in power.

DHANANI

(344 VIEWS)