CONSTITUTIONAL REFORM IN ZIMBABWE ON SHAKY GROUND

C O N F I D E N T I A L SECTION 01 OF 04 HARARE 000570 SIPDIS AF/S FOR B. WALCH DRL FOR N. WILETT ADDIS ABABA FOR USAU ADDIS ABABA FOR ACSS STATE PASS TO USAID FOR J. HARMON AND L. DOBBINS STATE PASS TO NSC FOR SENIOR AFRICA DIRECTOR MICHELLE GAVIN E.O. 12958: DECL: 07/10/2019 TAGS: PGOV PHUM KDEM ZI SUBJECT: CONSTITUTIONAL REFORM IN ZIMBABWE ON SHAKY GROUND Classified By: CDA Katherine Dhanani for reason 1.4 (b) and (d) -------------- SUMMARY -------------- ¶1. (SBU) Zimbabwe is continuing to progress towards a new Constitution, through much like the current inclusive government, it is a process fraught with risks. Next week's All Stakeholders Conference will attempt to establish thematic sub-committees charged with consulting the public on critical issues such as checks on executive authority, presidential appointments and term limits, and the rights of citizens. Preventing the politicization of these committees will be paramount in setting the stage for a democratic and principled final draft Constitution. Already, ZANU-PF has mobilized behind the 2007 Kariba Draft Constitution that was signed by the three major political parties as part of the SADC process, but never adopted. The Kariba Draft would strengthen the president and executive branch and allow Mugabe potentially another two terms in office. The MDC-T supports a "people-driven" process that is not tied to any pre-existing documents. Civil society is engaging, but divided on the best means of influencing the process. END SUMMARY. -------------- -------------- Background: The 2000 Referendum and the Kariba Draft -------------- -------------- ¶2. (SBU) On February 13, 2000, a referendum on a draft constitution that sought to replace the Constitution established at independence in 1979 at the Lancaster House talks, was unexpectedly and roundly defeated as civil service organizations, a nascent opposition movement, labor groups, and the white-led commercial farming sector combined efforts to reject the document. The defeat was taken as a personal rebuff by President Robert Mugabe and was viewed as a political triumph for the newly-formed opposition group, the Movement for Democratic Change (MDC). With ZANU-PF controlling all the levers of government and every seat in Parliament, the proposed Constitution sought to maintain the strength of the executive Presidency --though it did propose reintroducing the position of a Prime Minister-- and controversially included a clause allowing the State to take possession of white-owned land with compensation to be paid by the UNITED Kingdom. It was defeated by a vote of 55 to 45 percent, with only the ZANU-PF ethnic strongholds of Mashonaland voting in favor. ¶3. (SBU) Over the next seven years there were several attempts by civil society organizations and political leaders to press for a new Constitution. However, it was not until 2007 when --as part of the SADC-sponsored negotiations between the three primary political parties intended to set the stage for the March 2008 presidential and parliamentary elections-- there was political party consensus on a draft document. On September 30, 2007 at Kariba in northern Zimbabwe, the Minister of Justice, Patrick Chinamasa QZimbabwe, the Minister of Justice, Patrick Chinamasa (ZANU-PF),and the Secretaries-General of the two MDC formations, Tendai Biti (MDC-T) and Welshman Ncube (MDC-M), agreed upon a draft Constitution ostensibly to eventually replace the Lancaster House Constitution. The &Kariba Draft8 was the culmination of discreet negotiations between the three political parties and was sponsored by the then President of South Africa, Thabo Mbeki. Primary responsibility for drafting the Kariba document fell on six individuals, including the three named negotiators, but little is known about the negotiating process or general party objectives. It was never made clear if the Kariba Draft was to be used to further constitutional debate, to be put to a referendum, or to be foisted directly on the public. At the time of the negotiations, the Zimbabwean public was HARARE 00000570 002 OF 004 ignorant of the process, resulting in vocal criticism later by excluded civil society organizations. -------------- ZANU-PF Strategy: Push for Kariba and Delay -------------- ¶4. (SBU) Article 6 of the Global Political Agreement (GPA) signed on September 15 calls for a process to draft a new Constitution and "acknowledges" the Kariba Draft. President Mugabe has publicly stated that he and his party prefer the Kariba Draft not merely as a reference material, but also as the document on which a referendum should be held. The state-run newspaper, The Herald, on June 26 quoted Mugabe as saying, "We do not want any Constitution which is not the Kariba Draft" and "The parties signed it, page by page. What will happen is that the Kariba Draft will be put to the people at a referendum and the people will decide." ¶5. (SBU) In what has been viewed as an attempt to delay the process, ZANU-PF requested postponement of the provincial meetings held in June, the All Stakeholders Conference (ASC), and the upcoming consultative outreach phase, all on the pretext that it needed more time to mobilize its members. A day before the ASC was scheduled to begin, ZANU-PF succeeded in getting it pushed back to July 13 and 14. However, all other requests for delays have been dismissed by the Parliamentary Select Committee. -------------- The Kariba Draft Would Strengthen Mugabe -------------- ¶6. (C) Minister of Constitutional Affairs Eric Matinenga and University of Zimbabwe law professor Geoff Feltoe provided us with an analysis of the Kariba draft. It would enable Mugabe to stand for re-election for two additional five-year terms, thus allowing him to die in office. There is also no Prime Minister position in the Kariba Draft, removing an important check on presidential authority. Also, consistent with the current Constitution (prior to Amendment 19),the Kariba Draft vests the power to appoint virtually every senior government official, service chief (military, police, CIO), judge, and commission head in the Presidency. Appointments are most often made after &consultation8 with some other individual or body. In most cases, that person or body is also appointed by the President. ¶7. (SBU) Other noteworthy items include the Kariba Draft's word-for-word incorporation of the sections of the current Constitution that deal with the right to property; it leaves intact the State's unchecked ability to acquire and distribute land. It fails to protect many vital rights, such as the freedom of the media and the right of workers to strike. On elections, consistent with the existing Constitution, it fails to establish an electoral commission that is sufficiently independent by giving the President ultimate authority in selecting commission members. Qultimate authority in selecting commission members. ¶8. (SBU) The Kariba Draft also weakens Parliament by making the removal of an MP automatic after he or she is absent from 21 consecutive sittings. Given Zimbabwe's history of violence and intimidation in the political arena, it is possible to imagine that this change could be used to allow the expulsion of opposition politicians after they have been arrested or forced into hiding. -------------- Can ZANU-PF Derail or Dominate the Process? -------------- HARARE 00000570 003 OF 004 ¶9. (SBU) Under the terms of the GPA, the constitutional drafting process is a collaborative effort led and managed by Parliament, with input solicited from independent stakeholders from civil society organizations, the legal professions, academia, outside consultants and source documents, and the public. Also, unlike a routine legislative bill (that is proposed by a government Minister, receives the consent of Cabinet, is passed by Parliament, and then signed by the President) the draft Constitution will not be controlled by any particular government ministry, nor will it require the approval of Cabinet or the President. ¶10. (SBU) Further, despite the insistence of Mugabe and his advisors on the Kariba Draft, many in ZANU-PF support a process that considers but does not impose the Kariba draft. For instance, Paul Mangwana, the ZANU-PF co-chair of the Parliamentary Select Committee, stated at a Bulawayo provincial meeting on the constitutional process, "This process will be people driven and any draft on the new constitution will come from the people and not from any political party. The Kariba Draft is one such draft that will not be used as the basis for a new constitution." Other ZANU-PF members on the 25-member Select Committee on the Constitution support Mangwana. ¶11. (SBU) The next stage in the process begins on July 13 and 14 when the first All Stakeholders Conference takes place in Harare where 4,000 delegates from nearly every sector of Zimbabwean society will be present. This conference will establish 30 to 40 person thematic sub-committees, drawn from delegates at the June 24 and 27 provincial meetings, who will be responsible for consulting nationwide constituencies over the next four months on specific constitutional issues such as presidential appointments, term limits, control of the military, or a bill of rights. After this consultative phase, the Parliamentary Select Committee will prepare a draft. The draft will be presented at a second All Stakeholders Conference and then debated in Parliament. From there, the draft will be put to a nationwide referendum. If approved, it will be voted on for passage by Parliament 14 months from now. ¶12. (SBU) The procedure laid out in the GPA lessens the prospects that if a democratically-principled document that checks Zimbabwe's executive presidency emerges, ZANU-PF will be able to outright scuttle, veto, or delay it. The greater risk is that in each phase -- consultative, drafting, debate, referendum, and Parliamentary vote -- ZANU-PF will have opportunities to bias the process. For instance, according to Feltoe, the thematic sub-committees that are to be formed at next week's All Stakeholders Conference will each be led by an MP. Some of those MPs will be from ZANU-PF and could attempt to coerce or intimidate responses from rural Zimbabweans. They could also provide misleading QZimbabweans. They could also provide misleading constitutional materials or alter feedback. Similar opportunities are available later in the process, including mobilizing ZANU-PF youth and veterans to influence votes during the referendum. -------------- - NGOs Divided Over Participation in the Process -------------- - ¶13. (SBU) The NGO/civil society community is divided over whether to participate in the current Parliament-led constitutional reform process. In principle, several prominent organizations, including the National Constitutional Assembly (NCA) and the Zimbabwe Congress of Trade Unions (ZCTU),oppose the process on the basis that it is led by a Select Parliamentary Committee and therefore is not people driven. At a July 3 to 4 convention attended by HARARE 00000570 004 OF 004 over 230 NGOs (but not NCA or ZCTU) the participants unanimously rejected the Kariba Draft as a basis for constitutional reform. With regard to participation in the constitutional process, they resolved that those NGOs desiring to participate should do so, while those that do not want to participate, but prefer to carry out civic education will be free to undertake that campaign. Finally, those wishing to boycott the process completely are entitled to remain external critics. ¶14. (C) The NGOs resolved to hold a second convention after the First All Stakeholders Conference to review their position. Some delegates at the convention were concerned that boycotting the Parliament-led constitution making process would result in a draft that did not contain provisions that are important to NGOs. Lovemore Madhuku, head of the NCA, told us that he believes he can be most effective by exerting pressure from outside the process. Once a draft is completed, he said he and his organization would offer constructive suggestions. -------------- COMMENT -------------- ¶15. (C) Zimbabwe's path towards a new Constitution will be a case study in power politics. The MDC-T is putting a lot of eggs in this basket because they see it as their best chance to get widespread reforms passed and to cripple Mugabe's autocratic grip on power. Their ability to rally widespread public support and strength in Parliament are their greatest assets. Mugabe is aware of the risks and is pressing forward with a multi-pronged strategy that combines politicization and delay. He is cognizant that drafting and accepting a new constitution would lead to elections; as long as the constitutional process has not been concluded, elections will not be held and he and ZANU-PF can remain in power. DHANANI