Parties agree to Amendment 19

Negotiators from ZANU-PF, MDC-T, and MDC-M agreed on a draft Amendment 19 to the Zimbabwean constitution on November 27 paving the way for the formation of a government of national unity.

The draft now only waited the approval by party leaders Robert Mugabe, Morgan Tsvangirai, and Arthur Mutambara.

There were, however, still some unresolved issues which included:

• Allocation of ministries. This was the major area of disagreement between the parties with the MDC-t requesting discussion on an “equitable” allocation of all ministries. Ultimately, the discussion focused on control of the Home Affairs Ministry. The issue of allocation of ministries, including Home Affairs, is not addressed by draft Amendment 19.

• Appointment of ambassadors and permanent secretaries. The draft Amendment 19 adopts the formula of the September agreement. The president, vice presidents, prime minister, and deputy prime ministers must agree on such appointments.

• Allocation of governorships. This issue was not addressed in either the September agreement or draft Amendment 19 and is subject to further negotiations.

• National Security Council. Draft Amendment 19 and the September agreement both state that the president chairs the Council and that the prime minister is a member. The composition and role of the Council are not defined. The MDC considers this an outstanding issue to be negotiated.

• Definition of “consultation.” Both draft Amendment 19 and the September agreement state that the president “in consultation with the prime minister, makes key appointments the president is required to make under and in terms of the Constitution or any Act of Parliament.” Amendment 19 defines “in consultation” to require agreement of the individual consulted.

Full cable:

Viewing cable 08HARARE1065, ZIMBABWE AMENDMENT 19 AND THE STATE OF PLAY

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C O N F I D E N T I A L SECTION 01 OF 03 HARARE 001065

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STATE PASS TO USAID FOR E. LOKEN AND L. DOBBINS

STATE PASS TO NSC FOR SENIOR AFRICA DIRECTOR B. PITTMAN

E.O. 12958: DECL: 12/03/2018

TAGS: PGOV PREL ASEC PHUM ZI

SUBJECT: ZIMBABWE AMENDMENT 19 AND THE STATE OF PLAY

REF: HARARE 1034

Classified By: Ambassador James D. McGee for reason 1.4 (d)

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SUMMARY

——-

¶1. (SBU) Negotiators from ZANU-PF, MDC-T, and MDC-M agreed

on a draft Amendment 19 to the Zimbabwean constitution on

November 27. The draft, which essentially incorporates the

agreement reached by the parties in September, now awaits

approval by party leaders Robert Mugabe, Morgan Tsvangirai,

and Arthur Mutambara. Apart from the Amendment, several

outstanding issues remain, including allocation of ministries

including Home Affairs, allocation of governorships, and

composition and function of the National Security Council.

¶2. (SBU) Tsvangirai remains outside of Zimbabwe and is

visiting African capitals in an effort to rally AU support.

Until his return, there are unlikely to be meetings on

approving Amendment 19 or negotiating other issues. ZANU-PF

is scheduled to hold its annual conference from December 10

to December 12. Despite dissension from former ZAPU members

and allies of General Solomon Mujuru, who would like to

replace Mugabe as ZANU-PF head and Zimbabwe’s president, the

issue of succession is unlikely to be addressed. END SUMMARY.

———————————–

Amendment 19 and Outstanding Issues

———————————–

¶3. (SBU) Both ZANU-PF and MDC-T presented their own versions

of draft amendments to SADC facilitator Thabo Mbeki’s team.

All three parties ultimately agreed on a draft which for all

intents and purposes is the same as the September

power-sharing agreement (now referred to in Amendment 19 as

the Inter-Party Political Agreement). With regard to issues

MDC-T had argued were not resolved by the September agreement:

— Allocation of ministries. This was the major area of

disagreement between the parties with the MDC-t requesting

discussion on an “equitable” allocation of all ministries.

Ultimately, the discussion focused on control of the Home

Affairs Ministry. The issue of allocation of ministries,

including Home Affairs, is not addressed by draft Amendment

¶19.

–Appointment of ambassadors and permanent secretaries. The

draft Amendment 19 adopts the formula of the September

agreement. The president, vice presidents, prime minister,

and deputy prime ministers must agree on such appointments.

–Allocation of governorships. This issue was not addressed

in either the September agreement or draft Amendment 19 and

is subject to further negotiations.

–National Security Council. Draft Amendment 19 and the

September agreement both state that the president chairs the

Council and that the prime minister is a member. The

composition and role of the Council are not defined. The MDC

considers this an outstanding issue to be negotiated.

–Definition of “consultation.” Both draft Amendment 19 and

the September agreement state that the president “in

consultation with the prime minister, makes key appointments

the president is required to make under and in terms of the

Constitution or any Act of Parliament.” Amendment 19 defines

“in consultation” to require agreement of the individual

consulted.

HARARE 00001065 002 OF 003

–Discrepancies between the document agreed to by the parties

on September 11 and the agreement signed by the parties on

September 15. The three discrepancies dealt with the number

and sharing between parties of additional appointed Senate

seats; the appointment of vice-presidents, prime minister,

and deputy prime ministers from outside Parliament, and the

appointment of ministers from outside the ranks of members of

Parliament. The discrepancies are noted in draft Amendment

19 and are to be resolved by the principals.

¶4. (U) If an agreement is reached by the principals on draft

Amendment 19, it must then be officially published

(gazetted). After a 30 day period to allow for public

comment, it can then be introduced in Parliament. Assuming

agreement, it could be passed immediately.

¶5. (C) According to MDC sources, all outstanding issues

could be readily resolved with the exception of control of

the Home Affairs Ministry. Negotiators from all three

parties agreed to discuss the outstanding issues at the time

of negotiations on Amendment 19, but no date has been set for

such discussions.

————

Other Issues

————

¶6. (SBU) While not flagged by either party, there are other

issues that could emerge in efforts to conclude an agreement.

In its draft, ZANU-PF sought to validate all ministerial

acts between the date of the adjournment of Parliament on

June 8 and the enactment of Amendment 19. Some of these acts

would be unconstitutional since the ministers in question did

not hold parliamentary seats. The MDC would presumably want

to start from a clean slate. Relatedly, Mugabe appointed

Reserve Bank of Zimbabwe governor Gideon Gono last week to a

new five-year term. This appointment was obviously outside

the spirit of the September agreement. Also, since the

constitution requires the president to consult with the

finance minister before making the appointment, and the

finance minister was not a member of parliament, the MDC

could argue the consultation and resulting appointment was

unconstitutional.

¶7. (SBU) The MDC-T Amendment 19 proposal contained a

provision for the new Committee on Standing Rules and Orders

to make new appointments to the Electoral Commission, the

Anti-Corruption Commission, and the Human Rights Commission;

ZANU’s draft explicitly called for current Elections

Commission officers to retain their posts. This provision is

not contained in Amendment 19 leaving open the possibility

that existing members of these commissions will continue to

serve. Given the importance in particular of the Electoral

Commission, the MDC may once again raise this issue.

————————

Tsvangirai’s Whereabouts

————————

¶8. (C) Tsvangirai has been outside of Zimbabwe for the last

several weeks seeking to gain support for the MDC-T’s

negotiating position. Stops have included South Africa,

France, Germany, Tanzania, Botswana, and most recently

Senegal. He reportedly has plans to visit Kenya and Zambia.

The GOZ, which for months has promised, but failed, to give

him a passport, has indicated it will investigate him for

traveling beyond the scope of his travel document. With

apparent concerns that he may have trouble leaving Zimbabwe

after returning, Tsvangirai has no definitive plans to

return. MDC-T officials have told us they believe he will

return within the next week. Until Tsvangirai returns,

HARARE 00001065 003 OF 003

Amendment 19 cannot be adopted and signed.

——————

ZANU-PF Conference

——————

¶9. (SBU) ZANU-PF is scheduled to hold its annual conference

from December 10 to December 12. Before last year’s

conference, General Solomon Mujuru tried to place the issue

of succession on the agenda with the aim of removing Mugabe.

Mugabe outmaneuvered Mujuru and succession was never

discussed. ZANU-PF continues to be riven by dissension,

principally from Mujuru and his loyalists in Mashonaland

East, and from ex-ZAPU members. But there are as yet no

signs that the dissidents will mount an effective challenge,

and all signs point to a well-orchestrated and smooth

conference with no challenge to Mugabe.

——-

COMMENT

——-

¶10. (C) Under Amendment 19, as with the September agreement,

Mugabe would head the cabinet and Tsvangirai would head a

council of ministers. Both men would have executive

authority. Although certain duties of the president and

prime minister are delineated, it is unclear how the

president and cabinet and the prime minister and council

would coordinate the formulation and implementation of

policy. Success in governing would be dependent upon the

good will of the respective leaders and parties, something

that has been noticeably absent on the part of ZANU-PF.

¶11. (C) Article 19 represents a vehicle for the MDC to enter

government. The MDC must decide whether it believes that by

becoming part of government it can reach a modus vivendi with

ZANU-PF to stabilize the country with the ultimate goal of

ultimately defeating ZANU-PF in elections, or whether it

would be better off remaining outside of government, fighting

the GOZ and ZANU-PF from within Parliament, and waiting for

ZANU-PF to collapse. If the MDC decides not to join

government it will use the issue of an inequitable allocation

of ministries (assuming ZANU-PF does not relent on Home

Affairs) to justify its position. Meanwhile, as the

negotiating game continues, the country and its people

continue to suffer.

McGee

(30 VIEWS)