Constitution Watch 1/2009Towards a New Constitution7 April

Constitution Watch 1/2009Towards a New Constitution7 April

CONSTITUTION WATCH 1/2009

[7th April 2009]

Veritas is setting up a new e-bulletin which will be covering the new constitution making-process on which the country is about to embark.

We will be covering both the parliamentary process and civil society initiatives.

We are sending it to our Bill Watch mailing list – please reply with unsubscribe in the subject line if you do not wish to receive it.

Parliamentary Process Leading to a New Constitution

Under article 6 of the Inter-party Political Agreement [IPA] the inclusive government must draft a new Constitution for Zimbabwe and put it to the people in a referendum. According to the IPA, the drafting will be done by a select committee of Parliament, which must consult “stakeholders” and the public and hold two All-Stakeholders Conferences for the purpose. If Parliament’s draft is approved in the referendum, then the Inclusive Government must have it introduced into Parliament as a Bill, and, if Parliament passes the Bill, it must be brought into force as the new Constitution of Zimbabwe.[Electronic version of the IPA is available on request]

Time-Frame for the Parliamentary Process

The Inclusive Government is given a maximum of 20 months in which to complete the various stages of the process. The IPA specifies time-limits for each stage, starting from the date of inception of the inclusive government. As article 6 was not incorporated into the Constitution by Constitution Amendment No 19, it is just an agreement between the parties, and they could renegotiate the timetable, but the present indications are that the inclusive government will try to abide by the agreed timetable.

[The dates given below are the deadlines based on the maximum time allowed for each stage under the IPA, Article 6]

13 February 2009 saw the inception of the new Government [i.e. the date on which most of the Ministers were sworn in]

13 April - Select committee to be set up [must be done within two months of inception of a new Government]

13 July - Convening of the first All Stakeholders Conference [must be held within 3 months of the date of the appointment of the select committee]

13 November - Public consultation process completed [must be completed no later than 4 months after the date of the first All Stakeholders Conference]

13 February 2010 - The draft of the Constitution must be prepared and tabled before a second All Stakeholders Conference[must be done within 3 months after the public consultation process is completed]

13 March - The committee’s draft Constitution and its accompanying report must be tabled before Parliament [the draft and report must be tabled within 1 month of the second All-Stakeholders Conference]

Parliament has a month to debate the draft and report [presumably both Houses]

13 April - Parliament [i.e. both Houses]must conclude its debate on the committee’s draft Constitution and report [within one month]

The draft Constitution emerging from Parliament [i.e. with whatever changes Parliament has made to it] must be gazetted before the holding of a referendum.

According to Article 6.1 of the IPA, the Committee's draft Bill must be introduced into "Parliament" and the Bill "emerging from Parliament" must be gazetted and put to a referendum. The negotiators seem to have forgotten that there are two Houses of Parliament, and the IPA does not say what is to happen if the Senate and the House of Assembly fail to agree upon the Committee's draft. If they conclude their debate with irreconcilable differences as to what should be included in the draft, what is to be put to the referendum?

13 July - A referendum on the new draft Constitution must be held[within 3 months of the conclusion of Parliament’s debate]

13 August - The gazetting of the draft Constitution as a Bill, if it is approved in the referendum [it must be gazetted within 1 month of the date of the date of the referendum] ;what is to happen if the Bill is rejected in the referendum is not stated]

13 October - The Constitution Bill must be introduced in Parliament [presumably either the House of Assembly or the Senate] [this must be done no later than 1 month after the expiration of the period of 30 days from the date of its gazetting]

No time limits are given for what happens after the Constitution Bill is introduced in Parliament - probably because, if Parliament passes the Bill, the procedure for bringing the new Constitution into operation will be laid down in the Bill itself.

The IPA does not say what is to happen if Parliament rejects the Constitution Bill – although it is unlikely to do so if the Bill has been approved at a referendum.

Select Committee of Parliament on the Constitution

This select committee should be announced within the next week. Unofficial reports say the three political parties have agreed that the select committee should consist of 25 members of Parliament co-chaired by a member from each of the parties.

Article 6.1 of IPA states that this committee may set up sub-committees which will include representatives of civil society as well as members of Parliament. Each sub-committee will be chaired by a member of Parliament.

The select committee is mandated to hold public hearings and engage in whatever consultations it considers necessary for the constitution-making process.

Parliament-Driven Process vs People-Driven Process

The Constitution-making process and time-frame outlined in the substantive provisions of article 6 of the IPA, is essentially a Parliament-driven process, albeit with some consultation with stakeholders and the public. The question is whether this will satisfy the aspirations of Zimbabweans to have a “people-driven” constitution-making process. In fact, the preamble to article 6 in the IPA recognises these aspirations:

“Acknowledging that it is the fundamental right and duty of the Zimbabwean people to make a constitution by themselves and for themselves;

Aware that the process of making this constitution must be owned and driven by the people and must be inclusive and democratic;

Determined to create conditions for our people to write a constitution for themselves;”

As article 6 is not written in stone [it was not incorporated into the Constitution] perhaps the political parties can agree to revisit the Constitution-making process, taking the sentiments of the preamble into consideration, in order to satisfy all those who have been working on a new Constitution for the last twelve years.

It would be disastrous to have parallel processes such as took place in 1999, with a Government Constitutional Commission and a National Constitutional Assembly process running concurrently, and the outcome being a rejection of the government Constitution in the referendum of February 2000.

“Kariba Draft Constitution”

[Electronic version available on request]

In the preamble to article 6 of the IPA, the parties “acknowledge” a draft constitution that they signed at Kariba on 30th September 2007. Although this acknowledgement does not bind the select committee to base its new draft on the Kariba draft, the mention in the IPA of this draft, which is considered very unsatisfactory by most civil society analysts, has raised concerns that it will be used as a starting point by the select committee.

Civil Society Initiatives

Civil Society got off the mark quicker than the government. On 6th February a Constitutional Conference was held with several hundred participants representing NGOs, Unions, Churches, youth organisations, etc. The Conference included an overview of the of the Peoples Charter and its position on a new Constitution [People’s Charter available in electronic version on request] and of the history of civil society’s campaign for a new Constitution which has been ongoing since 1997. The Conference went on to examine the constitution-making process set out in Article 6 of the IPA vis-à-vis what has already been set out in the People’s Charter and in civil society’s previous work [in particular the NCA’s] on constitution-making. The conference issued the following communiqué:

NATIONAL CIVIL SOCIETY CONSTITUTIONAL CONFERENCE

COMMUNIQUÉ

We civil society organisations in Zimbabwe, meeting at the All stakeholders Constitutional Conference, in Harare on the 6th of February 2009;

Recalling the processes that lead to the creation of the Peoples’ Convention and subsequent drafting and adopting of the Peoples’ Charter;

Specifically recalling the spirit and letter of Article 3 of the Peoples’ Charter in respect of constitution making processes;

Being mindful of the Global Political Agreement, particularly Article 6 which relates to a constitution making process;

We the civil society organisations hereby affirm our commitment to the following:

1. We hold that Article 6 of the Global Political Agreement is and remains inadequate as a tool of creating a new people driven constitution. This is because the oversight role given to the Parliament of Zimbabwe in the same said article is undemocratic and subject to political party control as evidenced by the passage of Constitutional Amendment Number 19 on February 5 2009 and that this view shall be communicated to the political parties in the GPA as well as the Parliament of Zimbabwe.
2. We reaffirm our commitment to Section 3 of the Zimbabwe Peoples Charter which outlines both the content and process of a people-driven constitution.
3. That civil society shall be guided by the principles articulated over the last 10 years in relation to constitutional reform, both in the People’s Charter as well as in Resolutions of the People’s Constitutional Convention of 1999 on the definition of people driven processes in relation to an All Stakeholders Constitutional Commission, National Referendum, National Outreach, Compilations and Draft Constitution.
4. That at the end of the constitutional reform process, there should be a general election conducted in terms of the provision of that new democratic constitution.
5. That the views sought and acquired after a public outreach and consultation process be made public as well as unchangeable by law or the Parliament of Zimbabwe.

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