Lloyd Gumbo Herald Reporter
LEGAL and political analysts say political party leaders have authority to effect
changes to the draft constitution contrary to what MDC-T leader Mr Morgan Tsvangirai said on Wednesday after meeting South African President Jacob Zuma.
The Sadc-appointed facilitator was in Harare on Wednesday to meet leaders of parties to the GPA to assess progress made in the implementation of the accord.
Mr Tsvangirai, who is Prime Minister in the inclusive Government, claimed principals had no “veto power” over Copac.
However, analysts said Copac’s role ended with the handing over of the draft constitution to the management committee — which was set up by the principals and not by the GPA.
Harare lawyer Mr Farai Mutamangira said the basis upon which the entire constitution-making process is premised is, article 6 of the GPA.
“Put differently the constitution making exercise derives its mandate from a political agreement, and the Principals as the parties to the GPA, have the privilege to affirm an agreement or lack thereof, as among themselves in respect of the draft constitution,” he said.
“In doing so they do no more than exercise the contractual mandate they derive from the GPA. You will recall that the same Principals had previously drawn up and signed off as agreeable the Kariba Draft, which is annexure " B'' to the GPA.
“Clearly the new draft is intended to supplant the Kariba Draft, and its political and legal significance is no more than the Kariba Draft, and in any event much weaker because it has not garnered a consensus of all the Parties to the GPA.
“Unfortunately the legal significance of the new draft is that it can not assume an importance beyond that of the GPA, until the principals accept it and integrate it with the GPA and initiate the formal referendum process through parliament.”
Mr Mutamangira said the involvement of the select committee of parliament does not change, this position, in the absence of an Act of Parliament constituting the select committee by law, such as the select committee of Kenya which was constituted under the Constitution of Kenya Review Act number 9 of 2008.
Prominent Harare lawyer, Mr Jonathan Samkange concurred saying referring a document to someone subjects it to the whims of the person or people it has been referred to.
“The fact that this draft was referred to the management committee which was created by the principals means that the management committee was supposed to carry their mandate on behalf of the principals.
“This is just basic logic that the management committee will then have to submit the document to the principals so that they can audit to see if they followed the instruction.”
Mr Samkange said the principals had the mandate to effect changes to the draft constitution if they felt their emissaries did not capture what they wanted.
He described the principals as the highest political offices with the final say on the draft constitution.
Political analyst and Zanu-PF politburo member, Cde Jonathan Moyo said Mr Tsvangirai’s statement was misleading.
He said the final draft constitution was not a product of Copac but the management committee.
“What the Prime Minister said reflects either ignorance about Copac and its composition or a dishonest attitude and his disrespect of Sadc because everybody except the Prime Minister knows that the July 18 draft constitution was prepared by the management committee which is a forum of negotiators and not part of Copac,” Prof Moyo said.
He said the management committee was not Copac contrary to what Mr Tsvangirai said.
“Ministers Patrick Chinamasa, Nicholas Goche, Tendai Biti, Elton Mangoma, Priscilla Misihairabwi, Moses Mzila Ndlovu and Eric Matinenga are the management committee and none of them is a member of Copac.
“Only Copac co-chairpersons, Paul Mangwana, Douglas Mwonzora and Edward Mkhosi are members of Copac but they had no role in the preparation of the final draft.
“They were just used as messengers between the management committee and the drafters. It is common knowledge that when the management committee finished the draft, they sent it to Copac and Copac members were made to endorse it without reading its contents. Copac neither crafted this draft nor read it before their endorsement.
“For the PM to say this is a Copac draft which cannot be amended by principals, it is either ignorance of the actual process or an expression of his disrespect of Sadc because the facts speak for themselves.
“All along until yesterday (Wednesday) when he met President Zuma, Tsvangirai has been saying the draft constitution would be a negotiated document.
“Copac is not a negotiating forum but a Parliamentary Select Committee which was supposed to produce a people-driven constitution and not a negotiated constitution.
“Copac failed to do that and it also failed to publish the people’s views and the result was the draft constitution was negotiated by the management committee which is a forum of GPA negotiations and that committee reports directly to political principals who created it,” Prof Moyo said.
He said the principals and their political parties would have a final say about the fate of the draft constitution.
Prof Moyo urged Mr Tsvangirai to help the process by getting his political party “to play ball”.