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Constitution a Vexed Issue in Mediation Process

Both sides in the Zimbabwean confrontation want to change the constitution – but in radically different ways.
By Zakeus Chibaya
Constitutional matters look set to feature large in the mediation effort led by South Africa president Thabo Mbeki to seek a solution to Zimbabwe’s continuing political crisis. While the opposition wants Mbeki to facilitate progress towards a more democratic constitution, the ruling ZANU-PF may pre-empt this by getting its own constitutional changes in first.

Mbeki has been mandated by the Southern Africa Development Community, SADC, to talk to President Robert Mugabe and his political opponents. As he engages with the two sides, he is hearing demands from the opposition Movement for Democratic Change, MDC, for a major overhaul of the current constitution as a precondition for fair elections.

According to political analyst Edmund Gwazai, “The road map should lead to constitutional amendments which are acceptable to both parties.

“A new and well-drafted constitution will definitely solve the whole conflict facing the country. It will provide a platform for fair and free elections, and there will be an independent judiciary to arbitrate on issues of conflict arising from elections.”

The MDC has threatened to boycott the 2008 elections if the mediation process fails to result in an agreed set of constitutional amendments.

IWPR understands that both factions of the MDC have submitted letters to Mbeki identifying the constitution as the source of the present political conflict.

“The talks should lead to a new constitution where draconian laws will be scrapped to make way for free and fair elections,” Thamsqwa Mahlangu, the MDC’s national youth chairperson for MDC, told IWPR.

Zimbabwe still uses the constitution that was drafted at Lancaster House in London as a prelude to independence in 1980. There is common consent that it needs to be changed, but the consensus stops there.

Mugabe’s critics say he has used amendments passed over the years to steadily strengthen his position and marginalise opponents, notably in 1987 when the rules were changed allowing him to become president instead of merely prime minister.

Like the MDC, the National Constitutional Assembly, NCA, a pressure group calling for legislative reforms, is demanding that a democratically-inspired constitution should be in place before any election takes place.

“Whilst supporting the mediation efforts being led by South Africa, the NCA believes that without promoting a process of assisting Zimbabweans to establish a people-driven and democratic constitution as a basis for substantive democracy, the culture of anti-democratic practice will persist at an extreme human cost to Zimbabwe and the region,” said NCA spokesperson Madock Chivasa.

“Without a constitution that rests on a vision of democracy, any talk of mediation does nothing but buy time for the regime to perfect its art of thuggery and abuse.”

Mugabe’s ruling ZANU-PF party appears to be avoiding discussion of the issue in the mediation talks. But it is likely to rush though further amendments slanted towards strengthening the president’s position. That could derail any effort by the South African leader to forge a constitutional solution acceptable to both sides.

When ZANU-PF’s Central Committee met on March 30, it decided to introduce a constitutional amendment to parliament enabling the 2010 presidential election to be brought forward so that it coincided with next year’s parliamentary ballot. Other changes would bring in a new procedure whereby parliament selects a successor if Mugabe resigns before the end of his next term – meaning the head of state would be indirectly elected by a ZANU-PF dominated body rather than chosen by the people of Zimbabwe.

It is these revisions, rather than a new document agreed in consultations with Mbeki and the MDC, that ZANU-PF plans to push through.

"We are not going to have a new constitution now, and we don't know what they are talking about,” said ZANU-PF spokesman Nathan Shamuyarira, in remarks quoted on the website of The Zimbabwean.

Speaking to IWPR earlier this year, an anonymous ZANU-PF insider was dismissive of the MDC’s demand for a new constitution, and refused to say whether his party would consider the issue if it were put on the agenda of mediation talks.

“They rejected a new constitution in 2000. Have they changed their mind now? What are they proposing?” he asked. “It is their problem. Comrade Mugabe has said the current constitution is sacrosanct and non-negotiable.”

He was referring to a referendum in 2000 in which Zimbabwean voters rejected a new constitution proposed by the authorities, which would have legitimised the confiscation of white-owned farms as a way of providing redress for the British colonial past. Mugabe went ahead with the land seizures anyway, with disastrous effects on the country’s agricultural production.

A fait accompli by ZANU-PF will make the South African leader’s job that much more difficult.

“Mbeki is going to face a problem where Mugabe rejects a new constitutional initiative and drafts his own,” said Gwazai. “The opposition would demand an outright new constitution. The issue of the constitution is going to take up much of the time.”

This is not the first time Mbeki has been involved in attempts to put together a constitution that both sides could sign up to.

With Mbeki as intermediary, ZANU-PF and the MDC draft a secret document in 2004. Mbeki told the South African Broadcasting Corporation last year that the process was complete before the 2005 parliamentary election, and that he had copies of the document initialled on every page by ZANU-PF and the MDC.

Mbeki has said subsequently that the election put the process “on the back-burner” and it was not revived.

Other accounts suggested that Mugabe got cold feet on the constitution, not so much because of concerns about the opposition as over a meeting attended by some of his officials which he saw as a coup plot, requiring him to pull in his horns.

In Zimbabwe, many people are putting great store in the South African president’s ability to find a political solution and thus open the way to economic recovery.

Esinath Majoni, who is a nurse by profession but makes a living from cross-border trading, captured this sentiment when she said, “We hope that the talks will end our suffering in the country. It’s now difficult to survive in the country, and everyone is putting her last million dollars on Mbeki’s efforts to rescue us.”

Zakeus Chibaya is a regular contributor to IWPR.

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