Editor,
Zimdaily.
28th June 2006
Dear Sir,
The article you published by Tsungai Mhaka on Monday the 26th June 2006 is in some respects false and you are invited to correct the falsehoods and publicly apologise for them. Whilst I take issue with most of what has been written as it is largely comment I respect the right of Mr Mhaka to publish his views. However the sentences highlighted in the following paragraph are patently false and must be corrected:
“Notwithstanding the fact that the Tsvangirai side of the MDC has more academics and professionals than the Mutambara faction perhaps their pro-people, pro-poor agenda may not quite have resonated with the likes of Coltart. This is the same Coltart you remember who during the course of debate on the 17th constitutional amendment attempted to introduce a clause prohibiting the office of the Presidency of Zimbabwe being occupied by anyone who is not a university graduate. I understand the MDC National Council, whose decisions we are now made to believe are so sacred was never consulted before this proposed amendment was suggested.”
The facts are as follows:
1. A first draft of proposed constitutional amendments was produced by independent lawyers to reflect the views expressed by the people of Zimbabwe during the Constitutional Commission’s work. They were tasked with redrafting the Constitutional Commission constitution so that it reflected what the people wanted, as disclosed to commissioners during their “outreach” programme in 2000. The people’s views were detailed in the Commission’s report but, as you know, many of them were ignored in the draft constitution which the Commission ultimately produced. One of the most widespread and strongly-held views was that there should not be an executive President: the executive arm of government should be under the control of a Prime Minister, while the President should have only ceremonial duties — smiling at people, patting children on the head, greeting foreign dignitaries, and so on. At the same time, and rather inconsistently, the people felt that the President should have a university degree. See volume 1 of the Commission’s report, page 561. So when these lawyers redrafted the Commission’s constitution they gave the President minimal powers, just enough to ensure the continuation of government from one administration to the next. They also put in the provision requiring the President to have a university degree. They recognised that it was not entirely logical to impose academic qualifications on a person whose only real function was to be nice to people, but the qualifications were not completely incompatible with the post and putting them in would not make the constitution unworkable — and anyway it was what the people said they wanted. Hence that provision was put in.
2. Sheila Jarvis, a board member of Zimbabwe Lawyers for Human Rights, was already working with others on Constitutional proposals in the lead up to Amendment 17. Arnold Tsunga, the Director of ZLHR, and Sheila will confirm that they produced a very detailed package based on the original “What the people want” document – produced in the course of the Constitutional Commission’s work but ignored by it. ZLHR produced this package for Parliamentarians based on that document. The lawyers’ work in redrafting was therefore not their own – it was based on the “What the people want document” and as far as I understand was part of the ZLHR initiative to stir debate on the issue and to seek some common ground between the NCA draft and the Constitutional Commission’s rejected draft. To that extent the constitutional proposal document produced was not an MDC document per se but something that broadly agreed with the MDC’s general constitutional principles but, more to the point, was part of a wider initiative by civil society and lawyers interested in the Constitutional debate to provoke debate.
3. When I received the first draft from the civic society lawyers it was on a computer disk. I gave electronic copies to Tendai Biti and Welshman Ncube for them to have a look at a week before Amendment 17 was due to be debated. We agreed that in principle it would be a good idea for us to table the amendments to stimulate debate, knowing that there was no chance of Zanu PF ever accepting the amendments. The same has been done since 2000 – we have consistently tabled amendments to legislation. The most notable example was when I tabled substantial amendments to the Electoral Amendment Bill in 2004 – what was tabled was in fact an entirely new Electoral Act. Of course it was not accepted by Zanu PF but it stimulated a lot of debate and put Zanu PF on the back foot. So whilst it is correct to say that the amendments were not taken to the MDC National Council that has never been done in the past with other MDC amendments and there is no MDC constitutional requirement to do so. The day before the Parliamentary debate the issue was discussed in the MDC caucus meeting and it was agreed that we should go ahead, table and debate the amendments. The amendments AS TABLED IN PARLIAMENT (SEE BELOW), i.e. not the first draft given to us, reflected the MDC’s broad constitutional principles as devised by the Legal Committee which I chaired and which were accepted at the MDC National Conference held in Harare in December 2003.
4. When I read the computer version of the document I saw it had the clause referred to above, namely the requirement that the President have a university degree. As that conformed to neither the MDC policy nor my own personal views I took that clause OUT. The paper version of the amendments tabled in Parliament and handed to each MP clearly has that clause taken OUT by me on MY OWN INITIATIVE. So I did not ever “attempt to introduce a clause prohibiting the office of the Presidency of Zimbabwe being occupied by anyone who is not a university graduate” as Mr. Mhaka alleges. That is patently false.
5. Furthermore, and in any event, the original offending clause, as clearly demonstrated above, referred to a NON EXECUTIVE PRESIDENT, not an executive President. So it would never have affected Morgan Tsvangirai. Ironically had it not been taken out the person it would most likely have affected within the MDC would have been Vice President Gibson Sibanda! But in any event it was taken out by me as it clearly did not represent MDC policy.
From the above you will see that what has been written by Mr Mhaka, and published by you, is patently false. I expect the correct facts to be published and a full apology to be made. This e mail has been copied to Tendai Biti who I have no doubt will confirm the veracity of what I have written.
There is one further point regarding the article which I believe cannot go unanswered and I expect the right of reply from you if not a correction and apology. The offending clause is as follows:
“The issue of violence has only arisen as a back up excuse after realization that the arguments in favour of participation in the Senate would not wash. The alleged violence against senior party officials happened in December 2004 so the question could be asked of Coltart; why did you not resign then?? ”
Mr. Mhaka has clearly read the various articles I have written on the subject of violence recently and disingenuously he has deliberately chosen to mislead your readers by failing to mention pertinent facts mentioned in those articles. From the moment I became aware that violence had raised its ugly head within the MDC in September 2004 I began to speak out within the organisation, facts clearly set out in my articles. I expressed concern about the division in the National Executive held in Harare on the 18th December 2004. I raised further concern at the National Council meeting held on the 25th June 2005. Believing that I was not being listened to I tabled a written statement (attached hereto) at the National Executive meeting held on the 15th July 2005. Ironically that statement was tabled on my behalf by my successor as Legal Secretary Innocent Gonese (to whom this letter is also copied). He subscribed fully to the sentiments contained in that statement – that is why I asked him to table it. In other words long before the Senate even became a constitutional reality the issue of violence within the MDC was a major concern to me. I did not resign because I still hoped that I could work within the MDC to remedy the situation. For the same reason I did not join either faction after the 12th October 2005 debacle and put proposals forward to Morgan Tsvangirai in November and December 2005 to address the problem, which regrettably were rejected by the Tsvangirai faction in January 2006. It was only when I realised that my efforts were futile that I joined the faction most likely in my view to tackle this scourge. I have never of course resigned from the MDC.
Kindly give this letter the same prominence you gave to Mr. Mhaka’s article.
Yours sincerely,
David Coltart