Given the heated debate over the draft constitution produced by the three parties in the coalition government, SW Radio Africa invited COPAC co-chair Douglas Mwonzora (MDC-T) to defend his party’s position on the draft. He gives journalist Lance Guma an update on the process and why ZANU PF is now resisting the draft. Mwonzora also responds to accusations that the clauses on land discriminate on grounds of race.
Interview broadcast 15 August 2012
Lance Guma: Good evening Zimbabwe and thank you for joining me once again on Question Time. Zimbabwe is currently embroiled in heated debate over the draft constitution produced by the three parties in the coalition government.
Because of this we have invited one of the co-chairs of the Constitutional Select Committee that came up with this draft. Douglas Mwonzora is not only the spokesman for the MDC led by Prime Minister Morgan Tsvangirai but he’s also the Member of Parliament for Nyanga North. Thank you for joining us Mr Mwonzora.
Douglas Mwonzora: Thank you very much.
Guma: Now we asked SW Radio Africa listeners to send in their questions for you and hopefully you’ll give them the answers they need but before we get to that, let’s start off by getting an update from you on the constitution making process. Where are you with the draft and what is meant to happen if you still have a timetable?
Mwonzora: On the 18th of July 2012 we concluded the negotiations into the constitution and we produced a draft. So the draft constitution that we do have is a product of two key processes: that is the outreach process and the negotiation between the, among the political parties.
After finishing the negotiations and producing the draft constitution we of course made it available to the principals of the Global Political Agreement and their political parties. Of course we gave them as for their information so that they see what we had been doing and they see what we, the product of the negotiation.
It was not to open new negotiation. In terms of the Article Six of the Global Political Agreement, under which this constitution is being written, after COPAC produces a draft constitution it must submit that constitution to the second All Stakeholders Conference.
We have already arranged for that Stakeholders Conference; the number of delegates is going to be 2,400 from across the political divide and across the cross section of the Zimbabwean society – churches, trade unions and other civic organizations.
They will come to the second All Stakeholders Conference to interrogate this draft and see whether it accords with the views of the people of Zimbabwe. Thereafter this constitution draft is then put to the referendum.
So unfortunately before we could arrange for the second All Stakeholders Conference, we were told by Zanu PF that they were still interrogating the constitution, that their leadership was not happy with the constitution, with some aspects of the constitution and so on. They then requested a week; we were very happy to give them a week.
After that week, they requested another one and another one and so on. Then we then saw that Zanu PF was embroiled not in constitutional dispute but it was involved, embroiled in deep factional fighting. Up to now, this is what has stalled the process.
We cannot organize the second Stakeholders Conference because Zanu PF is still discussing the document. We also had sent the copies to the printers; Zanu PF through its representative phoned the printers to stop the production of the constitutional copies that we were going to avail to the people of Zimbabwe.
Guma: Okay, now my next question or the first question that will open the programme is obviously by someone who is a bit puzzled by that. Sondon Stalin Mugaradziko on Face Book says – you guys produced several drafts before you came up with the now called final draft.
Is it not a fact that when the negotiators then put pen to paper to confirm the final draft they had the blessings of their party presidents? He goes on to say – common sense tells me Tendai Biti or Patrick Chinamasa would not sign a document of that magnitude without the blessings of Tsvangirai or Mugabe respectively in their capacities as party presidents.
Mwonzora: He is very right. Mr Mugaradziko is very, very right. The negotiations were not being done in a vacuum; the negotiators came as representatives of the principals and we allowed them into the Management Committee to give us political direction for the things that needed political direction.
And I remember honourable Chinamasa and honourable Goche from Zanu PF asking for time to consult their leader which they duly did and they came and told us that he had okayed certain things. So the political parties were involved, the leadership was involved.
That is why for the MDC it did not take us time for our leadership to bless the document because this was not anything new to them. They were being advised from time to time; I certainly advised the Prime Minister from time to time as co-chairperson of COPAC, representing the MDC from time to time what the document contains, what are the sticking issues and so on.
So the Zanu PF people had the blessing of their principals but the problem with Zanu PF is that there are factions and what is happening is a manifestation of the deep-rooted factional fighting which is within Zanu PF.
Guma: Some of the concessions you have made as the two MDC formations have sparked outrage. We have an email from dispossessed farmer Ben Freeth who says –
“I think everyone who believes in the rule of law is aghast that the MDC have agreed to Section 4.29 which gives the state complete power and does not protect the rights of farmers and farm workers. Indeed it allows theft to take place because being able to take something without paying for it is theft.”
Your reaction to that?
Mwonzora: Well I have read the criticism from Ben and with due respect to him I think he is misreading Section 4.29. There are two sections, three, two sections, sorry two sections and a chapter that deal with land:
There is Section 4.28, then Section 4.29 and then Section, Chapter 16 which is a chapter on agricultural land. I would then advise Ben that he reads them in conjunction with each other because if you read one section then it looks like it is unjust.
But let me try to explain: Section 4.28 deals with property rights and these property rights include the right in the agricultural land and so on and it says – 4.28 – if anybody was to take that property, wants to acquire that property they have to do so subject to fair and adequate compensation. So it provides for compensation.
Section 4.28 – provides for acquisition of land, land that has been acquired and it says in respect of land that has been acquired then the compensation shall be for improvement only. If it is land taken for redress of colonial imbalances, it shall be for compensation only.
This is land that has already been acquired, not the land that is subject to being acquired. It is land that has already been acquired. So Section 4.29 deals with acquisitions that have already happened. Section 4.28 deals with acquisitions that have not happened yet.
If anybody, if the state were to acquire new land then 4.28 and not 4.29 applies. Coming to the question of the discriminatory clause which is in 4.29 – because it is dealing with land that has been acquired presumably to redress colonial imbalances, it says that it cannot be taken to court on the basis of racial discrimination.
In other words a person cannot go to court and say you have taken too much land that belongs to my race and so on. That is the only instance where discrimination is protected on the ground of race. It is in respect of land that has already been acquired.
In respect of land that has been, has not yet been acquired then the property rights in 4.28 apply. In other words a person whose land is being taken has a right to fair and adequate compensation, has the right to approach the courts and so on. They have the right to approach the court on any ground if it is in 4.28.
Guma: But for someone like Freeth who has lost his farm Mr Mwonzora, the constitution or the draft as currently presented by COPAC does not seem to be offering him any chance of redress. We’re still under the old constitution, they were not even allowed to take their cases to court or even if they did, the judgments were ignored so why should they be hopeful about this new draft?
Mwonzora: Unfortunately a constitution does not govern the past; it does not have retro-active effect. It governs things that are to happen after its promulgation. Unfortunately the acquisitions that were done, were done in terms of a law then and not in terms of the law now so unfortunately it does not have retro-active effect. What we are trying to do under this constitution is in respect of those acquisitions that already have been done, then it is for improvement.
Guma: Would you accept as Mr Freeth is arguing that the current draft goes against the SADC Treaty and the Campbell Judgment in the SADC Tribunal? Would you also agree that the constitution specifically allows discrimination and the MDC in the draft are agreeing to a clause that not only goes against the SADC Treaty and all other constitutions but as he (Freeth) argues – against God’s law as it were? Would you agree that the discrimination there is quite clear?
Mwonzora: The discrimination in 4.29 is clear but the MDC is not, we’re making a law, is not able to govern the past. It is not able to govern what happened before it was tabled to write a constitution. It can govern only what will happen after it got into govern and it has done that.
A constitution cannot operate in reverse and that was our predicament. We cannot operate in reverse. Indeed the SADC Tribunal came to a correct judgment that the acquisition, the way it was done was not even allowed in terms of the constitution then, it was against the law then and therefore, people like Ben and Mr (Mike) Campbell had a very, very, very good case and I agree with it.
But the predicament we have is that a law cannot operate in reverse and a law cannot have retro-active effect. We have sought to govern what we can govern in terms of the law. There are many arguments why a law must not operate in reverse.
Firstly it is to put certainty into the law. People must know that their own conduct is not fair. But people must read Chapter 16. Under Chapter 16 we make it clear that land belongs to all Zimbabweans irrespective of race; there and we also go on to say that any compensation must be fair and adequate and we provide the categories of compensation.
We also talk of hypothecation of the land and the bankability, we also talk about the creation of a land market. So we were only able to govern what is going to happen in the future.
Guma: Due to time constraints we’ll have to end Part One of this interview with Douglas Mwonzora, the co-chair of the Constitutional Select Committee. He’s also Member of Parliament for Nyanga North and the spokesperson for the MDC led by Prime Minister Morgan Tsvangirai. But don’t forget to join me next week for Part Two where we continue this discussion with Mr Mwonzora.
To listen to the programme:
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