CONSTITUTIONAL REFORM BILL GAZETTED

C O N F I D E N T I A L SECTION 01 OF 04 HARARE 001156 SIPDIS AF/S FOR B. NEULING NSC FOR SENIOR AFRICA DIRECTOR C. COURVILLE TREASURY FOR J. RALYEA E.O. 12958: DECL: 12/31/2010 TAGS: PGOV PREL PHUM ECON ZI SUBJECT: CONSTITUTIONAL REFORM BILL GAZETTED REF: A. GABORONE 1092 ¶B. HARARE 804 Classified By: Charge d'Affaires, a.i., Eric T. Schultz under Section 1 .4 b/d -------------- Summary -------------- ¶1. (U) The GOZ published a bill to amend the constitution on July 15. Proposed amendments include: transfer of title to the state of land acquired during land reform; elimination of judicial challenges to land acquisitions; the addition of a Senate to the legislature; additional restrictions on freedom of movement; and changes to the bodies that run elections. Civil society and the opposition MDC have been vocal in objecting to the bill, arguing that it would abridge human rights and further harm the country,s economy. Critics also object to constitutional changes via a parliamentary bill, arguing that the constitution requires a major overhaul with broad input from citizens and a referendum. End Summary -------------- Status of Bill -------------- ¶2. (U) The GOZ published the much-anticipated Constitution of Zimbabwe Amendment (17) Bill in the government gazette on July 15. The Government submitted the bill to Parliament on August 18. The Parliamentary Portfolio Committee for Justice, Legal and Parliamentary Affairs held a public hearing in Harare on August 4 at which statements from the public were read and accepted. The bill will have two additional readings in Parliament before it comes to a vote. ZANU-PF,s two-thirds parliamentary majority, secured in the tainted March elections, allows it to change the constitution while avoiding a public referendum. If passed, the changes would be the 17th amendment to the 1979 Lancaster House constitution. ¶3. (C) MDC Shadow Minister for Justice, Parliamentary and Legal Affairs David Coltart told poloff on August 16 that the MDC was developing a detailed counterproposal that MDC MPs planned to present to Parliament as amendments to the bill. (Note: The MDC used this tactic when last year's Electoral Bill was before Parliament, and their amendments stimulated a great deal of debate and some eventual changes to the bill). He said the counterproposal was not final and he could not yet discuss its details. -------------- -------------- No Court Review of Land Reform, State Takes Land Titles -------------- -------------- ¶4. (U) The bill,s most controversial reform is a new section to the constitution, which grants title to the government of all agricultural land acquired in the past under the land reform program and any land that may be acquired in the future. Those who have previously been allocated land under the program would hold a 99-year lease that could be inherited but not otherwise transferred without permission of the state. It would remove the right of landowners whose land has been acquired to challenge the acquisition in court. To acquire land in the future, the government would only need to publish an acquisition notice, and the title would automatically revert to the state after 30 days, with no compensation due the former owner except for improvements. The government could acquire any agricultural land for any purpose. ¶5. (U) At the August 4 hearing, speakers challenged this clause of the bill on the grounds that it would restrict property rights. The term &agricultural8 is not defined. The Human Rights NGO Forum maintained it could be interpreted in the future to include any property, even houses and businesses within cities. The Law Society said that eliminating judicial review of acquisitions would further erode public confidence in the courts, which was already suffering under the perception that the judicial system was used for political ends. The Commercial Farmers Union commented that removing legal challenges would prevent landowners from resolving mistakes if the state had not intended to acquire their land. ¶6. (C) Critics also noted that denying title to individuals would further harm the economy because individuals allocated land could not use it as collateral for loans to purchase agricultural inputs or make improvements. Justice for Agriculture argued that transferring title to the government would move the country,s economy backward to a feudal system while the rest of the world was moving toward the freehold system that had made developed countries so successful. Coltart told poloff that MDC leaders had pointed out to President Mbeki that the loan under discussion from South Africa would not do much to aid Zimbabwe,s economy when the GOZ was proposing constitutional reforms that would do further damage. ¶7. (U) Relevant to the bill's land tenure provisions, the GOZ's Mid-Term Fiscal Policy Review presented to Parliament on August 16 (septel) noted that investment on allocated farms was being undermined by uncertainty over security of tenure. It reiterated that the government would be issuing 99-year leases, which it described as giving confidence to the financial sector to finance agriculture. Details of the terms of 99-year leases were not provided. -------------- Return of the Senate -------------- ¶8. (C) The bill would also reintroduce a 66-member Senate, comprised of five members elected from each of the ten provinces, the president and deputy president of the Council of Chiefs, eight chiefs elected by the Council of Chiefs, and six appointed by the President. Speakers at the August 4 hearing objected to the number of appointed Senators and expressed concern that Mugabe would appoint failed parliamentary candidates. The Zimbabwe Election Support Network (ZESN) suggested an 80-member Senate to be popularly elected but added that now was not the right time to take on the expense of adding a Senate when the country had other priorities and resources were scarce. Coltart told poloff that a bicameral legislature might be good but that it should only be done as part of a complete overhaul of the legislature. The Senate proposed in the bill did nothing to address the fundamental imbalance of power between the executive and legislature. He added that, based on last year,s budget, establishment of the Senate would cost at a minimum ZWD 30 billion (roughly USD 1.7 million). -------------- Freedom of Movement Restrictions -------------- ¶9. (U) The bill would also amend the section of the Constitution dealing with the ability of the government to restrict freedom of movement. Currently, the constitution does not limit the right to leave the country. The bill would permit limitation of the right to leave based on national interest. The preamble to the bill states that terrorism is an example of the &type of mischief that may justify the imposition of the restrictions on the freedom of movement.8 ¶10. (C) Coltart said it was clear the government was laying the groundwork for a law that would make it easier to deny and revoke passports of prominent members of civil society who traveled abroad and publicized the true state of affairs in the country. He said the GOZ considered this an important step in quashing all flow of information out of the country. The use of the word &terrorism8 in the bill was intended to hide the real motive behind the amendment and make it palatable to foreign governments. On August 19, Jenni Williams of Women of Zimbabwe Arise! (WOZA),who has been invited to speak in the U.S., quipped to poloff that she needed to do all her travel now before the bill was passed and the government confiscated her passport. She said that the government wanted to prevent civil society from raising awareness about the country,s human rights situation and mentioned the workshop she and other Zimbabwean human rights activists attended in Botswana where the Zimbabwean ambassador denounced the speakers for telling &lies8 about their country (ref A). -------------- Electoral Reform -------------- ¶11. (U) The bill would abolish the Electoral Supervisory Commission (ESC),currently a constitutional body, and consolidate its functions with the Zimbabwe Electoral Commission (ZEC),which was established by law in December ¶2004. The ESC could not be abolished by the law creating the ZEC, because it was established by the constitution, and the law was not clear as to what responsibilities the ESC would retain. The new, slightly expanded ZEC would consist of a chair, appointed by the President in consultation with the Judicial Service Commission, and six additional members, appointed by the President from a list of nine nominees submitted by the Committee on Standing Rules and Orders. The ZEC would prepare for, conduct, and supervise elections and registration of voters. ¶12. (U) Most participants in the hearing applauded consolidating electoral functions in one organization but raised other objections. At the hearing, ZESN stated that, even with the welcome removal of the ESC, the ZEC was still flawed because not all electoral functions would devolve to the new ZEC as there would still be a separate Registrar General. (Note: The Registrar General has played a central role in ruling party manipulations of the political process during past elections. End note) Furthermore, a new ZEC should be independent and free of politics. ZESN and the Center for Peace Initiatives in Africa offered alternative means of choosing members, with different combinations of Parliament, civil society, or foreigners participating in selection. -------------- Civil Society Objects to Piecemeal Approach -------------- ¶13. (U) There have been strong calls from civil society for a new constitution dating before the GOZ,s failed 2000 referendum on a new constitution, but most civil society leaders with whom we have talked agree that changing the constitution via a parliamentary bill is a flawed approach. The National Constitutional Assembly (NCA),which has been arguing for a new constitution since it was formed in 1997, published a statement before the March elections cautioning the government against imposing a new constitution through Parliament rather than holding a new referendum. At the August 4 hearing, the Women in Politics Support Unit criticized the government for not consulting the public more. Other groups such as ZESN and ZLHR said that the current constitution could not be fixed and an overhaul was needed. The NCA, which did not participate in the parliamentary hearing, continues publicly to call for an inclusive process to support a new constitution. -------------- Comment -------------- ¶14. (C) Despite the objections of civil society, the GOZ is likely to push this bill through Parliament in something like its current form. After the humiliating failure of the 2000 referendum on a new constitution, Mugabe is not likely to countenance any kind of inclusive constitutional amendment process again. However, given the experiences of the two electoral bills last year and the NGO bill this year, there may nonetheless be a vigorous debate in Parliament. That debate will likely be fueled by arguments that undermining the security of titles could deal a further blow to the failing economy. This argument may get the attention of ZANU-PF legislators, many of whom are also beneficiaries of allocated farms and may be concerned about the prospect of not holding title to them. There is likely to be significant debate within ZANU-PF regarding the costs of this bill, but in the end ruling party MPs will likely toe the line and pass the bill. SCHULTZ