National Constitutional Assembly leader Lovemore Madhuku who was against a parliament-driven new constitution seemed to have softened his position after the first all stakeholders conference but insisted that he would be more effective from outside the process.
He said that once the draft was complete, he and his organisation would offer constructive suggestions.
Madhuku, however, tried to block the referendum for the new constitution but he failed.
He has, however, endorsed the recent Constitutional Court decision to have elections by 31 July ditching those who usually relied on his support to oppose the constitutional and election process.
Full cable:
Viewing cable 09HARARE570, CONSTITUTIONAL REFORM IN ZIMBABWE ON SHAKY GROUND
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VZCZCXRO4109
OO RUEHBZ RUEHDU RUEHMR RUEHRN
DE RUEHSB #0570/01 1911054
ZNY CCCCC ZZH
O 101054Z JUL 09
FM AMEMBASSY HARARE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4704
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHAR/AMEMBASSY ACCRA 2939
RUEHDS/AMEMBASSY ADDIS ABABA 3057
RUEHRL/AMEMBASSY BERLIN 1486
RUEHBY/AMEMBASSY CANBERRA 2320
RUEHDK/AMEMBASSY DAKAR 2687
RUEHKM/AMEMBASSY KAMPALA 3105
RUEHNR/AMEMBASSY NAIROBI 5548
RUEAIIA/CIA WASHDC
RUZEJAA/JAC MOLESWORTH RAF MOLESWORTH UK
RHMFISS/EUCOM POLAD VAIHINGEN GE
RHEFDIA/DIA WASHDC
RUEHGV/USMISSION GENEVA 2235
RHEHAAA/NSC WASHDC
C O N F I D E N T I A L SECTION 01 OF 04 HARARE 000570
SIPDIS
AF/S FOR B. WALCH
DRL FOR N. WILETT
ADDIS ABABA FOR USAU
ADDIS ABABA FOR ACSS
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
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?
——————————————-
HARARE 00000570 003 OF 004
¶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
(19 VIEWS)
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