Transcript of a Speech given by Senator David Coltart
Berlin
23 April 2010
I have been asked to speak on the topic  “Constitutional Process: The Status Quo, Requirements and Prospects”. The Global Political Agreement entered into in September 2008 has a detailed clause regarding the need for constitutional reform within Zimbabwe, and there are detailed provisions contained in there. I am not going to bore you with those details; suffice it to say that there was meant to be a process lasting eighteen months which would include a broad consultitative engagement with civil society and the general public in Zimbabwe, led by Parliament that would then culminate in the drafting of a Provisional Constitution. This would go through the parliamentary process, ultimately culminating in a referendum in which Zimbabweans would be able to vote in favour or against a proposed new Constitution, and that would end with that Constitution being passed into law by all the three parties to the Agreement. I stress that that eighteen month period was meant to start with the formation of the Transitional Government, which was in February last year, and so it should, if we were following that programme, be close to completion. Unfortunately it is way behind those targets, which has been due to a variety of factors.
There have been elements within ZANU-PF in particular who have sought to frustrate the process, but not all the blame can be laid at ZANU-PF’s door. We have had problems, to be frank, with Members of Parliament from all three political parties. One of the tragedies of Zimbabwe is that with the collapse of our economy, everyone is desperate for money. Teachers are paid US$160 per month, Members of Parliament are not paid much more, and they cannot come out on those salaries. Unfortunately, what has happened is that because there is a relatively large budget allocated to this constitutional reform process, many of the MPs have seen it as an opportunity to supplement their income. I don’t say that facetiously in any way – it’s been transparent, but they have asked for large per diems, they’ve wanted to hire out their parliamentary vehicles at commercial rates, and donors, understandably, have balked at that and have not been prepared to engage in that. That, more than anything else, has delayed the process.
There have been disagreements between the UNDP on the one hand, and COPAC, the organisation which runs the constitutional reform exercise, on the other hand. That, however, has finally ended, in the last few weeks, and there is now agreement on the budget and the process. Within the next few weeks I’m confident that the all-important phase of this exercise, namely the outreach, will commence. We have agreement that a combination of parliamentarians and civil society actors will go out throughout the country to consult people regarding what Zimbabweans want included in the Constitution. We will then go to the process of drafting the Provisional Constitution. That will go through a debate in Parliament, and ultimately it will culminate in a referendum. I don’t anticipate that we will have the referendum much before the first quarter of next year, but there is a broad consensus within the country, certainly within the three political parties, that the terms of the Global Political Agreement in this regard must be respected.
What are the requirements? Well, obviously there are the laid down requirements in the GPA. But there are two critically important requirements in my view. The first is that if this process is going to be successful, if people ultimately are going to embrace this Constitution, it has to be inclusive. It has to involve civil society, and there needs to be a real process of consultation, not a superficial process of consultation. The second important requirement is that that process of consultation and drafting must be done in a peaceful manner in the context of an open, transparent process. I think that we can achieve that. The country certainly is settling. As I said in my first talk, the incidents of human rights abuses have greatly reduced, and whilst there have been reports of people threatened in some outlying areas, I think that generally there will be a peaceful enough process for an adequate consultation to be conducted.
Regarding the substance, I could of course talk all day. I don’t have the time, but I would like to leave you with five broad areas of substance that I believe are benchmarks to judge whether this will be a successful process or not.
- 1. Balance of Powers
We need to adequately balance powers within Zimbabwe. We need a balancing of powers between the executive, legislature and judiciary. One of major problems in our country is that we have had a total imbalance of powers for fifty years, with the executive having vastly disproportionate powers in relation to the judiciary and legislature.
- 2. Separation of Powers
Tied to the first point, we need an objective separation of powers. We have had such a fusion between ZANU-PF and government structures on the one hand and such a blurring of powers between the legislature and the judiciary and the executive as well that we need a very clear defining of, and separation of powers.
- 3. Devolution and Decentralisation
Zimbabwe is a country that is too small to have a federal system as you have in Germany, but there is a lot of angst; there has been a lot of anger within the country over the last thirty years. There is a perception that there has been disproportionate development, that certain areas have got more development than other areas. I know that is especially so in Education. There is a very strong sentiment, for example, in the area I come from in the south-west of the country that children in that area don’t get as good an education as in other areas. And that can only be dealt with if we have effective devolution of power, decentralisation of power, as an integral part of this new Constitution.
- 4. Guarantee of Free and Fair Elections
The Constitution has to guarantee free and fair elections. It’s not good enough just to have new electoral laws; the elections have been such a point of contention in our country that we need strong constitutional provisions to safeguard that process.
- 5. Entrenchment of Fundamental Rights
We need to entrench fundamental rights in the country. We have had a reasonably good Bill of Rights in Zimbabwe, but it is deficient in certain respects, especially, for example, regarding citizenship rights, birth rights. This declaration of rights needs to be strengthened by a strong, independent judiciary, and processes which will enable people to pursue those rights and to protect those fundamental rights.
What are the prospects of success? For those of you who follow Zimbabwe closely, we have a so-called Kariba Draft Constitution which still haunts this constitutional process. This was an interim constitution agreed to by the three negotiating parties which unfortunately simply repeats some of the failures of the past. It doesn’t, for example, adequately, in my view, address the need to balance powers and separate powers. It still gives far too much power the executive. But there are certain elements in society that want to use the Kariba Draft as the ultimate draft, and who are trying to stifle a genuinely free debate and process. I’ve spoken as well about ongoing threats and intimidation. We’ve had reports of youth militia working in the rural areas trying to impose the Kariba Draft on certain people.
Another real threat to the process is that there are elements in civil society who, let me stress, are exercising their democratic right not to be involved in the process, but it remains a threat to the process. If we don’t manage to include key elements of civil society, not only will the ultimate product be deficient because we won’t have the benefit of their input, but also the process will be undermined. Of particular concern is the National Constitutional Assembly, the civic organisation set up with the specific task of promoting constitutional reform, which has deep reservations about this process and is not involved.
But against that, there is I believe a growing consensus, not just about the process, but also about the end product. To give you one example, ZANU-PF surprisingly in just the last two weeks, very publicly said that they now believe in limited terms for the President, or for the executive. That is a fundamental change. It may be brought about by the realisation that they won’t win the next election, that Robert Mugabe won’t be around, but it does lead to consensus in this process.
Another positive factor is that Zimbabweans have been engaged in an intensive constitutional debate for a decade, and so there is deep-rooted knowledge about constitutional issues in Zimbabwe. I’ve been amazed by the sophistication in the public debate, even in the depths of the rural areas, where one might expect people not to be aware of the finer details of the Constitution.
Another positive aspect is that we have regional standards to guide us. Each one of our neighbours has in the last twenty years embarked on substantial constitutional reform. There are certain regional benchmarks now that will guide us, and I believe that there is regional buy-in to this process to ensure that Zimbabwe doesn’t come out with a Constitution which is at variance with that regional standard.
So in conclusion, Mr Chairman, this, a bit like the Transitional Government itself: it is a slow, frustrating process, but I think that ultimately it is going to yield positive change. Inevitably, this Constitution is going to be the product of compromise. Some of the key issues I don’t believe are going to be addressed. For example, one of the key issues that my party promotes is the notion of dual citizenship, of the restoration of birth rights. We believe that if you were born in the country to parents who were lawfully resident, not necessarily citizens, you should get citizenship, and if you have gone into the diaspora and you have taken the citizenship of another country you should be allowed to retain your Zimbabwean citizenship. I fear that, for example, on that issue ZANU-PF are going to say no, because they will recognise that if they allow dual citizenship they will be blown away in the next election. So it may be an issue that we don’t win on in this phase, but I see this as a process. I think that we need to see that we will come out with a substantially better constitution than we have at present, but that is not the end of the process and that ultimately this ongoing process will yield fundamental constitutional reform, and that in turn will guarantee a democratic future for Zimbabwe.