Saturday, August 11, 2012

(SUNDAY MAIL ZW) Copac management committee exposed

Copac management committee exposed
Sunday, 05 August 2012 13:01
Sunday Mail Reporter

Attempts by Copac’s management committee to use the draft constitution to extend the shelf life of the inclusive Government beyond its mandatory expiry have been exposed.

It has become customary for the President to dissolve Cabinet before an election, but the Copac draft says the Prime Minister and his deputies will remain in office until the next President assumes office.

On March 27 2008, President Mugabe, as he has always done, dissolved Cabinet before the harmonised elections. However, Schedule 6(15) of the draft constitution crafted by Copac’s management committee whose key members are also GPA negotiators has a controversial provision that says:

“. . . notwithstanding any provision of the former Constitution (meaning the current Constitution), the following offices which existed on publication day in terms of Schedule 8 to the former Constitution (which is an annexure to Amendment 19), namely, the President and Vice President; Prime Minister and Deputy Prime; Minister and Minister and Deputy Minister, continue in existence until the effective date when the first President assumes office under this (draft) Constitution and the persons who held those offices remain in them accordingly”.

Some analysts told The Sunday Mail that this clause, which is not in the last two Copac drafts, was an example of gross abuse of office by individual members of Copac’s management committee to advance and entrench their political agendas and personal interests under the guise of “savings and transitional provisions.”

They said this was in blatant violation of established legal practice and against the views of the people gathered during the Copac outreach programme.
According to the analysts, the controversial clause not only seeks to use the backdoor to extend the life of the inclusive Government for political

purposes, but also seeks to entrench the personal interests of the individual members of the management committee who are Cabinet ministers and who drafted the clause to ensure that “the persons who held those (ministerial) offices remain in them” for political and personal gain until the next President is sworn in.

The Sunday Mail established that President Mugabe has in fact previously dissolved Cabinet before elections. For example, before the last election he dissolved it on March 27, 2008 ahead of the first harmonised elections and this was reported the next day by The Herald in a front page story headlined, “Cabinet dissolved ahead of historic polls”.

The report quoted President Mugabe saying that “Hurumende yedu, ndanga ndichivaudza nhasi kuti pedu papera nhasi uno. Tatoita meeting ka kuseni kuno, kuti tizvidissolve, sezvo tavakuenda kuelection. Maelection anotipa nhengo dzemaMP. MumaMP imomo ndimo matichazosarudza vatichazoti ava vangave maministers”.

In an interview yesterday given this fact, prominent Harare lawyer Mr Terrence Hussein said the clause to extend the lifespan of the Prime Minister and his deputies until the next President is sworn in would create a crisis should the draft constitution be adopted. He said as happened before, the President should dissolve Cabinet before the next election.

“A serious legal crisis would ensue, especially if we have inconclusive elections. How long will executive continue holding their portfolios and who will they report to? It means we will have a de-facto executive that will have no legally binding legs to stand in the office.

“We will have a situation where people will hold on to positions they do not deserve”.

Mr Hussein said the clause reveals the self-serving interests of some of the parties in the inclusive Government.
“Some political parties might be bent on pursuing self-interests. We had a system that has been working all this time so I do not see the reasons why we should have any changes”.

Asked to unpack this controversy, a senior constitutional lawyer with one of the country’s leading law firms with more than 25 years of legal practice who did not want to be identified for professional reasons last Friday said: “While it is indeed true that there should not be a vacuum in government business between the dissolution of Parliament ahead of a general election, that truth should be understood in context based on the constitutional fact that there are two sides of government: One permanent, based on appointed officials in the public service headed by permanent secretaries and their equivalents including independent constitutional bodies and the other temporary based on elected officials who deal with policy.”

Commenting on the controversy in The Herald last Tuesday, Professor Lovemore Madhuku of the University of Zimbabwe’s Faculty of Law said it was clear that the contentious provision “had been created to extend the stay in government of certain people” adding that “They (the management committee) obviously want to make sure MDC people remain in place until the last date”.

Political analyst and Tsholotsho North legislator Professor Jonathan Moyo described the controversial clause as “a clear and unprecedented politicisation and personalisation of constitutional issues by Copac’s management committee whose political motive and purpose are baffling”.
But lawyer Mr Jonathan Samukange of Venturas and Samukange law firm said that there was nothing necessarily wrong with members of the executive remaining in office because it avoids a vacuum in governance before, during and after the elections and emphasised that “there was need to remove a vacuum in governance before and after the elections”.

Politicians across the political divide who spoke to The Sunday Mail on condition of anonymity during the week supported this view, with one claiming “this has been the practice all along, which is why Cabinet is not dissolved before elections”. Constitutional experts said in terms of the Constitution it is very clear that the President is never dissolved and remains in office until the next President is sworn in so there can be no question or debate or vacuum arising from that fact.

“Even Article XX of the GPA recognises that the current President was not created by the GPA but continued in office as President having been elected to office before the GPA in terms of the Constitution of Zimbabwe,” said an expert..
“All the other elected officials including creations of the GPA who are called Members of Parliament out of whom Cabinet ministers are chosen should be dissolved and they would cease to be MPs after Parliament is dissolved in terms of Section 58 of the Constitution.

“Again that is very clear. What this effectively means is that on the one hand the President governs with both appointed officials in the public service and elected officials including the Cabinet in between elections which normally is for a period of five years and on the hand he governs only with appointed officials in the public service together with constitutional bodies after the dissolution of Parliament pending an election which must include the dissolution of Cabinet. Neither scenario creates a vacuum.”

Labels: , ,


Post a Comment

Subscribe to Post Comments [Atom]

<< Home