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. 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.

1. 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.

1. 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.

1. 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.

1. 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.

Transcript of a speech given by Senator David Coltart

Berlin

23 April 2010

It’s always such a pleasure to come back to Berlin and to meet some of you who are old friends. Berlin holds a very special place in my heart, because whenever I come here it is a reminder to me that tyranny ends. It is a tangible, physical reminder that although nations can go through great trauma under authoritarian regimes, with determination and help from the international community that can end, and so it always gives me great encouragement coming here as I return to Zimbabwe.

The question I have been asked to address this morning is: “The Unity Government: Ailing or Failing?” As we know, Zimbabwe has been through and exceptionally traumatic decade, but in fact the roots of this crisis are much deeper than just the last ten years. In fact, I would argue that they go back 50 years. Zimbabwe has endured 50 years of misrule. It lost its way as a nation in the late 1950s. That was followed by 20 years of Rhodesian Front white minority misrule, which in turn was followed by 30 years of economic decline and, I would argue, misrule under ZANU-PF. The last ten years have been particularly traumatic, with the collapse of the economy and the greatest movement of Zimbabweans out of the country into the diaspora. Some three million Zimbabweans have left the country in the last ten years.

This state of trauma culminated in the events of 2008 which in turn ultimately forced our neighbours to take a more active interest in what was going on in the country, which in turn resulted in the so-called Global Political Agreement, signed by the three major parties in Zimbabwe in 2008. The topic describes the result of that GPA as a Unity Government. Strictly speaking, it isn’t a Unity Government at all. We refer to it as the Transitional Inclusive Government, which you may think is just a difference of semantics, but there is a very important distinction between those two descriptions. This Government has been tasked not with governing the country indefinitely, as one may see a coalition do. It has a very specific mandate. It is tasked with stabilising the country, with producing a new democratic constitution and taking the nation through to a fresh election at the earliest opportunity. So in that sense it is not a coalition, nor is it a Unity Government and it is certainly not a Unity Government in the sense that was created way back in 1987 with the amalgamation of ZAPU and ZANU-PF. It is certainly not a coalition government as you have in Germany. It is simply a sharing of posts without any real agreement regarding policy and without agreement regarding the finer details of how a government will work as you have, for example, in Germany. What holds it together is the GPA which contains broad agreements regarding, for example, implementing and respecting the rule of law, regarding the constitutional reform process, but without any detail regarding policy.

Let me make one other preliminary point: this agreement was flawed from the very beginning. It brought together political parties that do not coincide, even vaguely, regarding policy. They come from fundamentally different backgrounds, outlooks and, of course, they are protagonists. Unlike the CDU and the FDP coalition, this arrangement brings together parties that have been almost in a state of war against each other. Some 400 people of the combined MDC have been murdered by agents of the other political party in the last ten years, and so the wounds are still very raw. There is still a very close link between the military in Zimbabwe and one of the political actors in this arrangement, ZANU-PF. There has been a blurring of the distinction between Party and State in Zimbabwe for the last 30 years. It is very often very difficult to distinguish between ZANU-PF and the State, because it has been so entrenched in Zimbabwean society and culture for 30 years. And because of this, it is simply unrealistic and unfair to have the same expectations of this arrangement as one would have of, for example, the CDU and FDP coalition. It is a fundamentally different arrangement, rooted in fundamentally different historical conditions. It is also unrealistic for the international community to expect these political players to change overnight, especially as regards ZANU-PF. ZANU-PF has been in power for 30 years and it has become exceptionally used to governing on its own. For the international community to expect ZANU-PF to change its method of governing overnight is simply unrealistic.

The reason I stress this at the outset is that I believe that the international community has had unrealistic expectations of this arrangement. There has been the expectation that ZANU-PF would change overnight and that Zimbabwe would stabilise, if not overnight then within months. This is unrealistic. But, as flawed as this Agreement is, in my view it was at the time of signature of the Agreement in September 2008, and even more so now, the only viable non-violent option open to Zimbabwe. That it is the only realistic method of resolving Zimbabwe’s problems I am more convinced of now, 14 months into this arrangement, than I was at the outset. We need to remind ourselves that in 2008, Zimbabwe was hurtling downwards towards total destruction. There was a certain element in our society that was quite prepared to take Zimbabwe down to the levels of Somalia, Sudan or Liberia. We were facing the prospect of a total failed state in Zimbabwe. It is important for the international community to continually remind itself of that absolutely catastrophic prospect that faced us.

Some have suggested that we should have had another election to replace the June 2008 election. Some today still suggest that an election should be held. In fact, both Robert Mugabe and Morgan Tsvangirai have, in the last few months, called for an election. But the reality is – and I say this from a third party minority perspective – that neither Robert Mugabe nor Morgan Tsvangirai would ever consider going into an election on the other person’s terms. In other words, Robert Mugabe has in mind an election that would be run very similarly to that run in June 2008, with violence and a flawed voters’ roll. Morgan Tsvangirai has, of course, in mind an election with a new voters’ roll, with changed electoral laws and with international observers. Neither would accept what the other has in mind. Even the call for a fresh election is not rooted in reality. The reason, of course, that both have in mind completely different elections is that both know that their victory in their own type of election is secure, and therefore they are simply not going to agree on mutual objective criteria for the holding of an election in the short term.

In short, I believe that, 14 months on, it is increasingly evident that despite all the problems this arrangement, as imperfect as it is, is the only option open to us. However, in answering the question “is it ailing or failing?” what I need to do is objectively consider the failures and success of the agreement so far.

Failures of the Agreement

The failures are pretty obvious, and they have very clear press coverage in Germany and elsewhere. Clearly, we have failed to fully implement the Agreement. There are some serious outstanding issues, such as the Governor of the Reserve Bank, Gideon Gono; the appointment of the Attorney General, Mr Tomana; the ongoing prosecution of MDC-T Senator Roy Bennett; the failure to appoint Governors; the failure to institute media reforms; the constitutional reform process is way behind schedule. There are ongoing destructive policies being pursued by certain elements within ZANU-PF, and there are ongoing land invasions. Just recently, one ZANU-PF Minister introduced new indigenisation regulations which almost killed investment in the country. Today, ZANU-PF has invited the Iranian President to open our Trade Fair, hardly a measure which is going to encourage investors to come into Zimbabwe. And so we have these ongoing, destructive unilateral policies that are implemented by certain ZANU-PF Ministers.

We also have the continuing arrest and detention of activists. In Bulawayo two or three weeks ago Owen Maseko, an artist who displayed his artwork on the Gukurahundi, was detained over the weekend. Only last weekend, women activists were detained, ironically over the Independence Weekend, for demonstrating against the electricity supply authority charges.

And then, of course, we have ongoing corruption and mismanagement. Perhaps the most glaring example of that is the Chiadzwa Diamond Mine in the south-east of the country, the operations of which are clouded in secrecy; there are deep concerns within society that this diamond mine is surrounded by mismanagement and corruption.

We cannot run away from these very negative failures, which dominate the press and, I think, deter governments such as the German Government and potential investors from coming into the country more wholeheartedly. But that is not the only picture.

Successes of the Agreement

There are also successes. We have stabilised the economy. The Minister of Finance has tackled inflation. In fact, last year we were experiencing deflation in the country, and whilst inflation is slightly picking up, given where we were just 14 months ago it is quite remarkable. Most businesses have stabilised. In fact, had we had lines of credit for the private sector, I think most businesses would be booming. The economy last year grew 13%. Now, I know that was off an exceptionally low base, but that is a real figure. The patronage exercised by the Reserve Bank has ended. Two weeks ago the new Reserve Bank Act, which greatly limits the powers of the Governor, was signed into law by President Mugabe, confining the Governor of the Reserve Bank to monetary policy. He is no longer able to engage in the quasi-fiscal expenditure which contributed to hyper-inflation in the country.

There has also been, despite the negative things that I mentioned earlier, a great improvement in the human rights situation and the general political environment. There have been hardly any disappearances in the last 14 months, and those who have been disappeared have been found. There have not been any incidents of torture in the last 14 months. The number of detentions has been greatly reduced. Let me stress that it is not perfect – my background is as a Human Rights Lawyer – but in the context of the last ten years, and the context of the last thirty years, it has been a dramatic improvement.

There are also many other improvements that have taken place. Today, we welcome His Excellency Hebson Makuvise, the new Ambassador of Zimbabwe to Germany. Appointed by Prime Minister Morgan Tsvangirai of the MDC T Party, he is now the Zimbabwean Ambassador to Germany. And we have other Ambassadors appointed in Australia, Senegal, Nigeria and other countries – a tangible improvement. We do not have everything that we want yet, but we have certainly seen a great improvement since this time last year. We have a new Zimbabwe Electoral Commission Board, chaired by a respected Zimbabwean Judge who practices in Namibia. It contains some of our finest lawyers, including Professor Geoff Feltoe, who is arguably Zimbabwe’s best constitutional and human rights lawyer. The Media Commission has been appointed, also comprised largely of objective people who I think will pursue a new democratic agenda. The Human Rights Commission has recently been appointed. It is chaired by Professor Reg Austin, one of the doyens of the legal profession in Zimbabwe and an internationally respected lawyer who has worked with the United Nations. All who know him will testify that he is simply an outstanding individual who I have no doubt will pursue a positive human rights agenda vigorously.

The talks have yielded other improvements to our laws. Some of these I cannot speak on in detail, but in the negotiations that have taken place in just the last couple of months the parties to the Global Political Agreement have agreed wide-ranging changes to our electoral laws which incorporate all the concerns that we have raised over the last ten years.

Even in the controversial areas that I mentioned earlier, such as land and indigenisation regulations, there has been some progress. Yes, there have been hardliners who have pursued a very destructive course, but through Cabinet, we have managed to restrain some of those policies, and in some cases reversed them. For example, the number of land invasions has reduced. They haven’t ended, but they have reduced and there is a growing understanding amongst moderates within ZANU-PF that they simply have to end. Even the indigenisation regulations, which have been dealt a serious blow to our investment climate, are going to be amended. In Cabinet this last Tuesday, which I sat in on, there was remarkable consensus reached regarding what needs to be done. Of course there’s a lot of political face-saving going on by the Minister responsible for these regulations, but the fact is that we are going to be amending these regulations. Yes, the damage has been done to the investment community, but one has to see this in the context of a process.

Corruption and mismanagement are still issues, but many of these issues are being addressed slowly. I don’t have the time to go into depth on this, but suffice it to say that we are slowly changing the existing culture within Cabinet. It is clear to me that what happened in Cabinet prior to the Transitional Inclusive Government’s advent was that corruption issues were simply not being discussed. They are now being discussed, being brought to the table within Cabinet, and on several different issues they have been addressed. We are also developing a new style of governance with tolerance and respect. It is not happening dramatically, but there is a gradual building up of a new culture.

Conclusion

So, Ladies and Gentlemen, I need to come to the end and come back to that question, “is this Government ailing or failing?” Well, I think it is doing neither. Ailing in my mind implies someone who is sick and getting sicker – getting worse. There is no doubt that this arrangement is struggling, that this Transitional Government is very fragile, but I believe with every month that goes by the process of reform becomes harder to reverse.

What you need to understand is that there is a huge gap within Zimbabwe, and internationally, between the political rhetoric that is out there and the functional reality within Cabinet and within Government. Cabinet is tense; it is not exactly cordial, but it is functional. So in answer to the question, I believe it is not ailing or failing, but perhaps it is wailing! The political actors to this agreement are wailing continuously. ZANU-PF talks about sanctions not being lifted, the MDC formations complain about the indigenisation regulations and ongoing human rights abuses – there’s a lot of wailing. But it is not ailing to the extent that it is terminal, and I don’t believe ultimately that it’s going to fail. Indeed we cannot allow it to fail because the consequences are too ghastly to contemplate.

Let me conclude by saying that this agreement could still fail – to contradict myself – if it is not supported by the international community. The scepticism of many could become a self-fulfilling prophesy. However, I believe that if the international community supports a peaceful non violent transition it will help grow public confidence in this process. If this happens I think ultimately, over time, in a slow, sometimes frustratingly slow, process, it will yield a meaningful and irreversible transition to democracy in Zimbabwe.