Wednesday, May 09, 2012
Wednesday, 09 May 2012 00:00
Lloyd Gumbo and Felex Share Herald Reporters
THE Copac draft has many irregularities that will have undesirable consequences if confirmed as the supreme law of the country, legal experts said yesterday.
They called for the total disbandment of the Copac process and the holding of elections under the current Constitution, saying the draft seeks to decimate the country’s post-independence history to pave way for the MDC-T’s envisaged ‘‘new Zimbabwe’’.
Church leaders also weighed in, saying the input they gave during the outreach programme was left out of the draft constitution as the process had turned out to be a battle between Zanu-PF and the MDC formations, a development they described as untenable.
They, too, called for the disbandment of Copac and the rescuing of the constitution-making process.
Apart from the issue of gay rights, some of the contentious issues include a clause on founding provisions on the national flag, national anthem, public seal and the coat of arms.
The draft says: “Zimbabwe must have a national flag, a national anthem, a coat of arms and public seal, details of which are to be prescribed in an Act of Parliament.”
Legal experts said the provision portrays Zimbabwe as a country that has just attained independence.
The draft also defines the next elections, Executive and Parliament, as the first as if the country has not held elections since 1980.
University of Zimbabwe law lecturer and National Constitutional Assembly chairman Professor Lovemore Madhuku said the drafting had been done poorly.
“The draft must recognise that the national flag, national anthem, coat of arms and public seal already exist,” Prof Madhuku said.
“It’s an ignorant way of drafting. It’s unfortunate that they (Copac) didn’t tap into the constitutional experts throughout the country and because of that, their limitations have come to the fore.”
Prof Madhuku said the drafters should not have indicated the next elections, Executive and Parliament as the first as if the country was just emerging from decolonisation.
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“They should just park this draft and Copac to create room for a national dialogue on what to do before the next elections,” he said. “After the elections, the constitution should be done by independent bodies without elections in mind.”
Mr Terrence Hussein, a senior lawyer with Hussein and Ranchhod law firm, said the provision on national flag, national anthem, coat of arms and public seal exposed the four to unnecessary changes.
“They should have incorporated what is already in the current Constitution by name without subjecting them to a parliamentary procedure,” he said.
“Something as important as the national flag, national anthem, coat of arms and the public seal should never be subjected to normal parliamentary procedures because those things cannot be changed willy-nilly because of majority numbers in Parliament.
“Those four things must be elevated to the extent of being a schedule attached to the Constitution, the reason being to make it impossible for them to be changed unnecessarily. In fact, any intention to change those should be subject of a referendum because they are a very important national part of our identity.”
On the next elections, Executive and Parliament, Mr Hussein said the draft should have been done in a way that recognised continuity from the current Constitution.
“We cannot try to obliterate our past by simply changing the provisions of the Constitution,” he said.
“Let’s not treat this as if it’s declaration of independence as was done in the United States. This constitution was supposed to create an improvement of the current constitution.”
Another constitutional expert who requested anonymity said failure by the draft to recognise that Zimbabwe already has a national flag, national anthem, coat of arms and public seal was an attempt to destroy the country’s history.
“The structure behind Copac, the framework, foundation, skeleton and intention of the draft is to create a ‘new Zimbabwe’ because they are using reference of a country that is breaking from the past,” he said.
“They should have used the new Kenyan model of the constitution that recognises the independence of Kenya and builds upon it.
“From the way the clause is crafted, it is clear that it is refusing to recognise that Zimbabwe has those things and the draft attempts to open a possibility for them to be replaced.
“It is on public record that MDC-T people don’t sing the current national anthem, but Ishe Komborera Africa and this clause now seeks to create an opportunity for the national anthem to be changed.”
Pentecostal Assemblies of Zimbabwe leader Bishop Trevor Manhanga, yesterday said the country should go for elections using the current constitution than using a document negotiated by political parties.
He said the fact that Copac failed to produce a publicised National Report meant people's views were tampered with.
"What is the difference between their draft and the Kariba draft which was negotiated by the same political parties
"It means this is an exercise in futility that will be heavily rejected by the people of Zimbabwe, including churches. They went to the people to gather their views but we are now seeing that what matters in the draft is not our contributions but foreign ideas such as those from UNDP," he said
Bishop Manhanga said Copac had turned out to be a moneymaking venture for some officials.
"It has been three years and they have gobbled over US$50 million, an amount which could have been used for other developmental purposes.
"One thing we do not want to see in that constitution is about gay rights. This is unacceptable and as the document has shown, it will be out of favour with Christians," he said.
Evangelical Fellowship of Zimbabwe president, Dr Goodwill Shana, said the draft constitution was not people-driven.
He said the churches were not given a chance to participate in the process since the outreach programme ended.
'This is more of political war between parties and the views of the people have been neglected.
"We hope that we will be given a chance to say something in the new constitution. For us to accept that document, it has to be a mirror of what we said during the outreach programmes.
"Anything outside that, we will disown it," he said.
Turning to the issue of gays and lesbians rights that Copac has tried to smuggle in, Dr Shana said: "No sane person in the country would like to see that being smuggled into our supreme law.
"We are a Christian nation and gays and lesbians rights are morally and spiritually unacceptable."
Pastor Godwin Chitsinde of the Spoken Word Ministries said those advocating gays and lesbians rights wanted to create gays in the country.
"We don’t have many gays and lesbians in the country and they will only be created by this constitution if it is allowed to sail through.
"This is a way of wanting to dominate black people and we are saying we have fought our battles and suffered enough and whites should not continue manipulating us."
He said Zimbabweans who wanted gays and lesbians rights should visit countries where homosexuality is accepted
"If it is a political party advocating that it is going to receive great resistance from us," he said.
Copac has come under fire for trying to smuggle homosexual rights into the latest draft by replacing the phrase “natural differences” with “circumstances”.
Legal and political experts have said the latest Copac draft constitution has clauses that may be manipulated by those lobbying for the inclusion of gays and lesbians’ rights into the constitution.
Former Attorney General Mr Sobusa Gula Ndebele said the draft did not have limitations as may be assumed.
He said the provision on the national flag, national anthem, coat of arms and the public seal did not have implications to the status quo.
“I think that provision is an attempt to make those things timeless so that they can be changed in future. I am sure clarifications as to the status quo will be provided for in the Statute,” said Mr Gula Ndebele.
“I don’t think the draft has shortcomings as such, it’s just the way things are drafted.
“The constitution will obviously have an interpretation section where they will explain what they mean by such phrases as first elections, first executive and first parliament which I also believe are based on the new constitution.”
Mr Thembinkosi Magwaliba of Magwaliba and Kwirira Legal Practitioners concurred with Mr Gula Ndebele, saying the constitution was not meant to give more details.
“It is through an Act of Parliament that provisions on the current national flag, national anthem, coat of arms and the public seal will be provided for,” he said.
“This provision does not necessarily mean that Zimbabwe will appear as a newly independent country.
“The provision on first elections, executive and parliament is not wrong because all laws that are put in place by Parliament, including a constitution are of effect from the day they become law.
“So there is nothing wrong in saying they are the first because they mean from the new constitution.”
The Copac draft has created a lot of controversy on several issues including homosexuality, dual citizenship and devolution.
The draft has been referred back to the select committee as political parties seek the way forward on the contentious issues.