The Deception of Zimbabwes Draft Constitution

By Takura Zhangazha*

I have not yet read the COPAC draft constitution. And I will probably not read it because I do not have to. Its a document that can no longer take my views into account. No matter how many times academics or political gladiators defend or disparage it. I am also aware that some colleagues in civil society are under tremendous pressure to defend it, warts and all, as a 'better than before' document, and sure enough they will be convening various public meetings to discuss the document's content from a legal perspective. The politics of the document will be conveniently forgotten and an initially silent campaign to seek to persuade Zimbabweans to vote 'yes' to the draft is most definitely underway, even though its final content is yet to be approved by the principals of the inclusive government. Not that such approval makes the document any more democratic. It just simply means this draft constitution is imbued with the personalities and politics of President Mugabe, Prime Minister Tsvangirai, Deputy Prime Minister Mutambara and Minister Ncube.

Even the COPAC management committee together with its select committee cannot do anything else to this document. They have haggled, had numerous workshops and spent over US$20 million (another figure made public has been US$45million) on a draft whose final contents will be determined by just four individuals. But that is not the essential point, even though it makes one wonder,where the COPAC chairpersons get the wherewithal to still claim to have been running a 'people-centered' constitutional reform process.

The key issue is that for all our analysis of the COPAC draft, it is a document that can only now be changed by four individuals. To seek to claim that it is a better document by way of legal analysis and to have Zimbabweans support it, is an exercise in political hypocrisy. This is because to all intents and purposes, even without reading the draft, the political processes that have informed this document are very similar to those that led to the first Kariba draft. In fact, this new draft should merely be referred to as the Kariba 2 document because the politicians that wrote the first version are the players that are now in charge of the second version. And if anyone wants to change the content of the draft, they would be well advised to simply make a beeline to the offices of the President, Prime Minister and the other two ministers.

A second element that points to the hypocrisy of our politicians has been their intention to conveniently forget the monumental disaster that has been COPAC itself. From its beginning to present day, COPAC has failed to demonstrate the requisite seriousness that is nomrally reserved for processes as important as the drafting of a national constitution. Against better advice, it ignored its own outreach findings, sidelined civil society and spent lavishly on hotels, conferences for things and issues which it, in the final analysis has not even seriously considered. Even if its mandate was patently undemocratic, it failed meet the requirements of performance criteria it had set for itself.

Thirdly, the fact that the conversations around constitutional reform have shifted to content does not make the process any more democratic. To argue about the content pre-supposes that it can be changed. Alternatively to debate the content can also be taken to mean indirect approval of the document and therefore, to be a willing player in an undemocratically arrived at draft constitution.

The truth of the matter is that the Kariba 2 draft constitution is not going to undergo any major changes, and even if it does, those changes will not be coming from civil society but the four principals in government. Added to this is that the defence of the document that has begun to be undertaken by some colleagues in civil society means that they are already campaigning for a 'yes' vote for a draft constitution that was arrived at undemocratically. And they are probably doing this under pressure from the MDCs who keep arguing wrongly that the 2000 'no vote' was a mistake, yet it was a democratically arrived at verdict of the peoples wishes.

These colleagues in civil society and in the MDCs would be well advised that constitutions are not written merely for the removal of individuals from power, they are intended for holistic democratic governance. To want to mix up issues of how to get rid of Zanu Pf from power with the constitution making process even at this late stage, is to deliberately deceive the people of Zimbabwe.But then again, the whole COPAC process and the attendant civil society support for it, has been an exercise in elitist political deception.

Finally, I am aware that there is an assumption that it is the political principals that will be able to get Zimbabweans to vote yes to the draft and that anyone else campaigning for a 'no vote' will most certainly lose. This would be a fair analysis were it not for the fact that the people of Zimbabwe do not have a limited understanding of constitutional reform issues. And I am certain that even with all the cajoling and the politicized 'yes' vote campaigns that will follow, a significant number will register their displeasure with the great deception that has been COPAC.

*Takura Zhangazha writes here in his personal capacity (takura-zhangazha.blogspot.com

Debating the EU's 'credible referendum' conditionality on Zimbabwean sanctions

By Takura Zhangazha*

The European Union has decided to put a conditionality on the long standing issue of sanctions on Zimbabwe and Zimbabwean individuals. In a statement released on Monday, July 23, 2010, EU foreign ministers stated that they would suspend sanctions on Zimbabwe only after the country has held a 'credible referendum' on a new constitution. The same statement also sought to make it clear that the sanctions being referred to are not those that relate directly to President Mugabe or any one who is linked to political violence. The latter point is one that will obviously rile members of President Mugabe's party and may also cause SADC to warn against selective application of the sanctions when the country has an 'inclusive' government and a political agreement that calls for the lifting of all sanctions on Zimbabwe.

It is however the prerogative of the EU to decide its foreign policy and the onus of changing its 'cold' approach to Zimbabwe resides more in the ability of Zimbabwean leaders to negotiate for the reneging of these sanctions. That the Zimbabwean leaders have failed to find a common strategy on how to get the sanctions lifted is no longer in any doubt especially after this new conditionality of a 'credible referendum' that has  been announced by the EU foreign ministers.

It would however be necessary to examine what this new EU position on sanctions means for Zimbabwe and our politics. The first effect of this new conditionality will be that of making the constitutional reform process as the 'only' mechanism through which free and fair elections can be held. This in itself is a disputed point but what the EU has essentially placed on the table is that either the inclusive government comes up with reforms that lead to a 'credible referendum' and with it a 'credible' referendum result or the sanctions will be extended.  Whether this will mean a new law on referendums in Zimbabwe that is approved by the EU or alternatively, a constitutional campaign that will lead to a 'yes' vote to the COPAC draft is really up to the three principals in the inclusive government. What is however self evident is that the EU has literally placed the ball in the court of the three parties in the inclusive government, and either way, the same parties will have to dance to the tune of EU should they want sanctions suspended or lifted in the short term.

It is also important to observe that because of the rather condescending announcement by the EU foreign ministers, the three parties in the inclusive governemtn are going to react differently on the matter. Zanu Pf is going to be slighted and will raise its internal party stakes around the exact purpose of the whole COPAC process. The same party will also be more shrill in seeking to put the blame for sanctions firmly at the MDCs doorsteps after this particular development. There will however also be internal divisions as to whether to call the EU's bluff and go ahead with the referendum or put a stop to the constitution drafting process all-together citing controversial arguments such as 'interference with sovereignty' or the oft-used refrain of 'regime change agenda of the West'

The MDCs on the other hand, will view this as a 'victory' in the sense that it makes their case for a new constitution via a referendum internationally recognized and therefore seemingly irreversible domestically. These parties will also seek to raise the matter with SADC in order for the issue to have resonance with Zimbabwe's neighbours and in terms of the much vaunted electoral road-map. They will however face the challenge of being accused by Zanu Pf and some ruling parties in the region of not having done enough thus far to get the sanctions lifted or to have actively played a part in their retention. This more so where Prime Minister Tsvangirai is reported to have  stated  that sanctions must be suspended, not lifted, while in Australia this week. In true fashion, the MDCs will issue ambiguous statements on the same matter in the confidence that their actual position on sanctions is of limited interest to their supporters or their electoral base.

To all intents and purposes, the announcement by the EU foreign ministers on the conditionality of a 'credible' constitutional referendum as the basis of a review of sanctions, is a serious development in Zimbabwe's politics. Whether the EU ministers made this decision on the advice of any other players is of limited consequence because it remains their right to determine their foreign policy. This is also true of Zimbabwe's political leaders who also remain with the sovereign right to respond to the EU's announcement hopefully in the best interests of Zimbabwe and not of themselves. Now that the constitutional referendum has been internationalized, the political stakes are higher, and it is my fervent hope that our own common sense will prevail.


*Takura Zhangazha writes here in his personal capacity (takura-zhangazha.blogspot.com)

Potential implications of a deteriorating media freedom climate in South Africa on Southern Africa.

Remarks made at the Media Institute of Southern Africa (MISA) Public Discussion on Media Developments in South Africa and their potential impact in Southern Africa.

Wednesday, 12 July 2012: Rosebank Crowne Plaza Hotel, Rosebank, Johannesburg, South Africa

By Takura Zhangazha.* 

Mr Chairman,

Let me begin by expressing the gratitude of the Voluntary Media Council of Zimbabwefor the invitation to attend this public discussion at the behest of our colleagues from the Media Institute of Southern Africa(MISA). The topic under discussion is an important one because it relates to the state of media freedom in the Southern African region with particular emphasis on recent media policy developments in South Africa.

It is an historically understood point  that in the aftermath of the anti-apartheid struggle and on the basis of its democratic constitution, the influence of South Africa on broad regional debates concerning democratization issues has been and continues to be  substantial.

This should also be taken to mean that it is generally perceived within the Southern African region and beyond that South Africa is a good example of a functional democratic state. Such comparisons are even more poignant where the Zimbabwean state is compared with the South African one either in direct relation to democratic practice or where it concerns issues of the perfomance legitimacy of former liberation movements that are in power in both of our countries.

In the last ten or so years, one of the key components of measuring and comparing the democratic perfomances of various SADC states has been whether or not the citizens of the same are enjoying their right to freedom of expression, and whether the freedom of the press is also guaranteed. South Africa has had the distinction of being singled out as having some of the most democratic clauses in its constitution and attendant enabling laws concerning freedom of expression, media freedom and media diversity. In fact, it has been cited by many Zimbabwean media stakeholders as an example of where lessons can be drawn from in order for the Zimbabwean media landscape to be fully democratised, particularly with regards to media self regulation, broadcasting diversity as well as media sustainability.

It has however come to pass that the South African government has decided that it must introduce the Protection of State Information Bill, a development that has had the unfortunate impact of making some governments in the rest of the SADC region claim that their laws are not so bad after all (even if they remain much worse, eg. Zapiro would probably have been a police cell in Zimbabwe charged with undermining the authority of the President).

Add to this, the now stalled Media Appeals Tribunal (MAT) which is currently a policy document of the ruling African National Congress, then indeed there is serious cause for concern about media freedom in South Africa. And given the regional ‘democratic example’ role that South Africa has been playing, it would also mean that if the MAT were to be made government policy, it would be a significant setback  for media freedom in the region by way of example.  

It would also appear as if the South African ruling party is getting lessons from some of its neighboring ruling parties in the region who insist on statutory regulation as well as criminalization of the media profession. From our own Zimbabwean experiences, such tendencies can only be those of  governments  that have  more to hide than share in the best democratic public interest.

Apart from the new undemocratic policy trends in South Africa as regards the mainstream media, again there is the new threat that is emerging from governments across the world against those that utilize social  media for citizen journalism or even just expressing their opinion on political matters. Given the global government panic over the impact of Wikileaks as well as the invoking of anti-terrorism laws by governments that have been at the forefront of promoting democracy globally are now preferring criminal charges against whistle blowers and investigative journalists. This is an unfortunate emerging trend that the Southern African region would do well to avoid.

With regards to the important issue of media self regulation in the region, it is imperative that we continue to emphasize the democratic symbiosis of the rights of media freedom with freedom of expression and access to information. None can exist without any of the other two.

Where governments both within our SADC region and across the oceans have started to talk about exercising either of the triumvirate rights separately, it must be viewed as being tantamount to seeking to make freedom of expression either a ‘qualified’ (depending on your political loyalties) franchise right or ‘privilege’ rights to be enjoyed solely by those in power.

This is why ‘co-regulation’ of the media by the state and the media itself, though being touted as a ‘compromise’, is patently inadequate in allowing the media to carry out its public interest mandate.

Governments, South Africa’s included, have adopted a ‘self righteous’ approach that seeks more to threaten the media than to engage in progressive dialogue with the media and allow media self regulation breathing space.

This is a habit that is now generally seen across the sub-region, and the new media policy direction being debated by the South African Parliament, unfortunately serves to strengthen the emergence of governments with predatory tendencies against the media.

It is therefore of utmost importance that we do not seek compromises that seek to protect those in power or those that claim and  wrongly seek to confer responsibilities that are undemocratic on the media while they skirt the democratic mandates that have been given to them by electorates.

Media self regulation is of the utmost importance in Southern Africa and indeed to our South African media colleagues because it has not yet been fully implemented. In effect it is work in progress. We therefore must not at this juncture permit democratic values to be compromised on the basis of the sole whim of governments that are more keen on control than they are on democratic media public accountability and serving the best public interest.

Where media self regulation has been faulted by governments in the region or elsewhere, these are accusations of those that either misunderstand the organic triumvirate of the right to freedom of expression, access to information and media freedom (which is inclusive of media self regulation).

It is however not only governments that must be reminded on these matters. Owners of the media products/houses must also commit themselves more and more to learning to balance their valid concerns on profit and sustainability with those of the public interest as well as media ethics. This would include ensuring that at least they collectively continue to agree on particular media ethics and commit to supporting media self regulatory mechanisms.  Journalists must also demonstrate commitment to the same said media ethics and media self regulatory mechanisms with the primary intention of proving that the profession is essentially there to work in the best public interest and with democratic media public accountability. 

To conclude, I must emphasize that the debate around media self regulation is a big debate about the triumvirate rights to freedom of expression, access to information and media freedom. Where we begin to see this clearly, we can argue on the basis of the democratic rights of the people of South Africa, Southern Africa and the world to enjoy these rights without undue interference. It would therefore be wrong for regional governments to seek to criminalise the three rights all at once via threatening journalists, whistleblowers and human rights activists for publishing information which in most circumstances is directly in the public interest. Where some of the technical arguments against media self regulation  relate to how ‘no one is above the law’, criminalizing the work of journalists will always, in the final analysis , be patently undemocratic.

Thank You.

*Takura Zhangazha is the Executive Director of the Voluntary Media Council of Zimbabwe (www.vmcz.co.zw)

Electoral End Games of Zimbabwe's Inclusive Government.

 Electoral End Games of Zimbabwe's Inclusive Government.
By Takura Zhangazha. *

The political parties in Zimbabwe's inclusive government have now begun playing out their electoral end games eleven months prior to the expiry of its constitutional term of office in June 2013. There have been varying public statements  from the three parties in government about the actual date of  elections  and which ever way one looks at it, election season is now firmly upon us again. Whereas Zanu Pf has been insisting on elections being held this year, that can now be considered a moot point given the hints by some of its newspaper columnists that it is well nigh impossible to have both a constitutional referendum and an election in terms of a new constitution in the next eleven months.

The MDCs, on the other hand, have been arguing for the full implementation of the SADC facilitated election road map. They however must most certainly know that again in the limited time period available , they will not get everything that they are requesting short of a constitutional amendment that extends the lifespan of this current government. And for this, they would require an almost impossible to get two thirds majority in Parliament. At best the MDCs will probably have to revert back (amidst Zanu Pf resistance) to the Electoral Amendment Bill (amongst other potential or existent laws) to try and integrate the provisions of the SADC facilitated road map into  domestic law.

Regardless of the outcome of all of these contestations, the issue of elections is no longer as distant as it was two years ago. In fact, it has become evidently more urgent for political parties within and without of the inclusive government and as such, the Zimbabwean public must brace themselves for highly politicized debates and an increasingly polarized political environment. In this, there will be the revival of the old rivalries of 2008 and mudslinging between leaders in the inclusive government about the performance of rivals in the last four years.

The images of friendly leadership handshakes will decrease and we will all be asked to demonstrate loyalty to one party over the other without really questioning issues of the policy substance that has been provided by the inclusive government in the period that it has existed. It is because of such a potential development that one can reasonably argue that we are now entering a political period in which we should no longer expect much by way of non-partisan or 'common ground' policy from the inclusive government. 

Each party will angle what it would call its own 'exclusive' policies in the inclusive government as evidence of its ability to govern and therefore its electability over the others. Zanu Pf will insist that it's indigenisation programme has been a success while MDC will argue that were it not for its control of broader economic policies, hyper-inflation would still be knocking on every citizens door. Blame games for the undemocratic and expensive constitutional reform process under COPAC will reach a particular partisan crescendo because it is the one thing that all parties in the inclusive government cannot skirt collective responsibility on.

The actual reality for the everyday citizens will however not be as frenetic or as emotive as that of those that will be seeking their votes. They will view and participate in the electoral processes either out of cultural and political coercion or even self aggrandizement than belief in any particular principles. This being a direct result of the fact that the inclusive government has had little to offer by way of inspiring its own people to believe in anything else but survival of the 'fittest' and the cliched  'kiya-kiya' political economy. Add to this, the clear distinction between the profligate lifestyles of those in government and the majority populace has already led to a cynical electorate which may seek more to gain materially in the immediate than to challenge political leaders on the country's future. So there will be the positioning of money, jobs and drought relief handouts in direct return for votes from a public that knows that without taking advantage of the elections, these material benefits would be few and far between.

So as Zimbabwe enters this protracted election season, it is of importance that civil society organisations take non-partisan stock of the inclusive government based on democratic values and principles. Where this is not done, it is the country that will be the worse off in the present and in the future. It is also imperative that  the inclusive government be brought to account not merely on the basis of the personalities that comprise it, but on its performance when measured by social democratic value and principles.
*Takura Zhangazha writes here in his personal capacity (takura-zhangazha.blogspot.com)