Constitution of Zimbabwe Amendment (No. 2) Bill: Understanding the history and motivation

(An extended except from Professor AGO Mutambara’s upcoming book: In Search of the Elusive Zimbabwean Dream Volume 3)

Introduction: All-Stakeholder Endorsement of the 2013 Constitution

There are extensive deliberations back and forth in May, June and July 2012, resulting in COPAC formally adopting a Draft National Constitution on 21 July. This document is taken for adoption at the Second All-Stakeholders Conference – the Fourth Phase in the Constitution-Making Process. It is held on Monday and Tuesday, from 22 to 23 October 2012, at the Harare International Conference Centre (HICC) in Harare. It is quite a celebratory affair, with performances from various artists including Oliver Mtukudzi. Who could have imagined the top leadership of the country – Robert Mugabe, Joice Mujuru, Morgan Tsvangirai and yours truly – dancing together at a public platform to Oliver’s rhythmic beats?

The objectives of this conference – which is attended by around 1 400 delegates – include receiving from the three Co-Chairpersons of COPAC: the Report on the Constitution-Making Process, the Draft National Constitution, Comments and Recommendations on the Draft National Constitution. At this forum, the three GNU Principals speak. We thank COPAC teams and its leadership and express our satisfaction with the tremendous progress.

In my remarks, I emphasise that: (1) the constitution we seek to craft is for posterity and must not be unduly influenced by present-day circumstances and ambitions; (2) the people’s views and aspirations must remain central in terms of the content of the document; and (3) we must think beyond the constitution as a piece of paper, learn from history, embrace constitutionalism and address economic affairs of our nation with the same national enthusiasm and cohesion.

I vigorously stress that the coming into law of a New Constitution does not automatically guarantee a new constitutional order or constitutionalism. There must be a paradigm shift of mindset on the part of every citizen. My full speech on this grand occasion is elsewhere in this memoir. After my presentation, Mugabe is overly impressed and is engulfed in profound exuberance and exhilaration. He and I have come a long way since my time as a UZ student leader from 1988 to 1990. According to ZTV News on 23 October 2012, Mugabe says: 

‘Fellow Zimbabweans, education is very virtuous. Look at this young man. He now speaks like a statesman – Oxonian, PhD, Professor and all!  Asi, zigomana iri raisombondinetsa chose paUniversity yedu apa. Rainditema nematombo. Manje iko zvino matombo tave kutemwa tese. (Well, this rascal used to give me hell while he was at the University of Zimbabwe. He was so radical and used to throw stones at, and violently criticise, those in authority, including me as President of the country. Now that he is in government, we are now viciously attacked together). The tables have turned, Professor. We are now the enemy together!’

The entire HICC erupts and roars into uncontrollable laughter and cheering, some banging tables and others whistling as they give Mugabe an emphatic standing ovation. Mugabe laps it all in, before he proceeds with his official remarks.

As part of the conference, the Draft National Constitution is reviewed, and processes begin for its final adoption – incorporating new and agreed recommendations – by COPAC and the top leadership of the three political parties. It is quite a tedious, contentious and iterative process, with several meetings at the different levels – COPAC Team, the GPA Negotiators and the GNU Principals.

Adoption of the New Constitution: The parties are agreed! 

On 17 January 2013 – during a breezy Monday morning – we meet at the final negotiating platform for the New Constitution – the 2013 National Constitution. It is a gathering of the GNU Principals, our Negotiators, the Minister of Legal and Parliamentary Affairs and the three COPAC Chairpersons. Before us are matters that our three sets of Negotiators have not been able to resolve. These outstanding issues include: (1) the running mate clause (2) the Attorney General transitional mechanism, and (3) devolution.

The running mate clause is a provision uncreatively borrowed by our Negotiators from the US and Malawian constitutions – where a presidential aspirant must choose a person to be his or her partner as they contest the election, such that, in the event of victory this person becomes the Vice President. In fact, the proposal is to have at least one running mate and at most two (i.e., a maximum of two elected Vice Presidents). Should the President die, resign or is incapacitated, the Vice President automatically takes over as President to complete the presidential term of office. The efficacy of the running mate clause is that it brings certainty to succession and involves the citizens in that process. By voting for the presidential ticket of a President and a Vice President, the people are choosing both a President and his potential successor. This provision is a source of disagreement and acrimony among the Negotiators. Ambitious elements in both ZANU-PF and MDC-T would want it implemented immediately to resolve succession matters in their two parties. However, other equally ambitious party members are concerned that they might not be the chosen ones as running mates; hence they are circumspect about this clause. It is instructive to note that if this provision is procedurally adopted in 2013, Joice Mujuru would be the primary running mate for Robert Mugabe, while Thokozani Khupe would be the number one running mate on Tsvangirai’s ticket. Pure and simple.

However, there is confusion all over the place because these two key potential running mates have limited influence in the negotiations of the 2013 National Constitution. Although he is neither a Negotiator nor a Vice-President in ZANU-PF, Emmerson Mnangagwa is the key player. Having orchestrated – together with the army, police and the CIO – the bloody and fraudulent 2008 June run-off presidential election, he has asserted his closeness to Mugabe and improved his standing in the party. Mugabe owes his presidency to him and the securocratic state. In fact, the ZANU-PF Negotiators, Patrick Chinamasa and Nicholas Goche, report to him first before going to Mugabe.

Consequently, there is no appetite from the ZANU-PF Negotiators to immediately implement the running-mate clause if it means elevating Joice Mujuru. In MDC-T the two Negotiators Tendai Biti and Elton Mangoma have no interest in crowning Thokozani Khupe. There we are. All this speaks to the direct and detrimental impact of intraparty interests, dynamics, competition, self-interest and hierarchies on the national constitution-making process. It is clearly not completely people-driven! The exercise is slowly and dangerously sliding and degenerating into an undertaking to establish an elite pact – not a people-driven democratic charter.

When the running mate clause is brought to just the three of us – Mugabe, Tsvangirai and me – in an earlier Principals’ meeting, it is immediately killed because neither Tsvangirai nor Mugabe wants to appoint a running mate. In particular, Robert Mugabe has outright contempt for Joice Mujuru as his successor. Tsvangirai is equally dismissive of Thokozani Khupe. They both want their succession questions to remain open. In fact, I get a sense that each one of them wants to succeed himself! This is one discussion in which I find Robert Mugabe and Morgan Tsvangirai in enthusiastic and ecstatic agreement. They are like little mischievous and naughty kids as they vigorously and garrulously defend their perverted positions. They laugh derisively as they cherish this rare, though dishonourable, common ground: ‘Successor? What for?’ Those are their dismissive and nauseating rhetorical questions.

History has borne out the folly of this misguided and unstrategic thinking on the part of these two political leaders – my fellow GNU Principals. Tsvangirai dies in office on 14 February 2018, as the President of MDC-T, even after a protracted battle with terminal colon cancer had provided him with ample time and opportunity to resolve the MDC-T succession challenge systematically and proactively. He leaves his party exposed to an avoidable, nasty, primitive and acrimonious succession struggle between Nelson Chamisa, Thokozani Khupe and Elias Mudzuri.

Even though Nelson Chamisa eventually ‘wins’ the fight using unorthodox methods characterised by violence, misogyny and constitutional violations, the MDC-T party name withers away because of the resultant disputes, while the MDC-Alliance (MDC-A) seeks to replace it.

However, Chamisa’s ascendancy is short-lived, as the Zimbabwe’s Supreme Court on 31 March 2020, declares his presidency of the MDC-T illegitimate, by ruling that Tsvangirai’s appointment of two extra MDC Vice Presidents (Chamisa and Mudzuri) in 2016, was in violation of the MDC constitution and that Chamisa’s manoeuvres to succeed Tsvangirai were illegal.

Even the May 2019 Congress that formally elects Chamisa as MDC President is rendered a legal nullity by the Supreme Court judgement. Clumsy, unsophisticated and patently dishonest arguments that this congress was for a new party – MDC Alliance – and not the MDC-T do not cut it. So much avoidable chaos, drama and self-inflicted pain and disarray!

Indeed, strategic incoherence on steroids!

All this could have been circumvented if Morgan Tsvangirai had understood the importance of institutionalised, transparent, predictable, constitutional and democratic succession in his political party – MDC-T.

On the other hand, Mugabe is forcibly removed from office by a coup d’état in November 2017, after firing both Joice Mujuru (in 2014) and Emmerson Mnangagwa (in 2017) from their vice-presidential posts in both ZANU-PF and government; and having incredulously expressed interest in running again for the presidency in 2018, ridiculously and unashamedly at the age of 94.

With hindsight, maybe if the running mate clause was implemented in 2013, the political history of Zimbabwe could have been different. Anyway, that is the price we pay for the utter lack of leadership in both ZANU-PF and the opposition parties. In April 2021, has anything changed? On 22 October 2019, as the rumours and intrigue of a political tussle with his ailing deputy – Constantino Chiwenga – Mnangagwa announces that ZANU-PF will seek to amend the constitution to remove the running mate clause.

There is absolute silence from the opposition MDC Alliance. Once again, there is perverted agreement and a disgraceful meeting of minds on this matter. In fact, on 31 December 2019, the ZANU-PF government formally publishes the Constitution of Zimbabwe Amendment (No. 2) Bill, which seeks to remove the running mate clause, among other atrocious and self-serving changes. Again, specifically on the running mate clause, there is muted protestation from the main MDC Alliance.

It seems the MDC Alliance leader also does not want a running mate! In fact, he ran for the 2018 presidential elections without a Vice President in the party, much less a running mate. In 2020, there is speculation that some of the MDC Alliance leaders are having second thoughts about the term limit clause in the 2013 National Constitution. ‘What if the people want their person to continue? We must not undermine the people.’ Those are their unprincipled and shameful utterances.

Cry the beloved country!

As it turns out, on Tuesday, 20 April 2021, Constitutional Amendment (No. 2) sails through the Lower House on a 191 to 22 landslide – a clear and eloquent two-thirds majority. It is prudent to note that this outcome was guaranteed and a forgone conclusion, given ZANU-PF’s 31 July 2018 parliamentary two-third majority victory, which the MDC Alliance did not and does not challenge. The parliamentary recalls and Douglas Mwonzora’s misguided antics and shenanigans are of no consequence to the Lower House vote of 20 April 2021.

The constitutional changes will enable a sitting President to appoint judges without public scrutiny and extend their terms of office after reaching the current retirement age of 70 years. The proposed amendments will also see the scrapping off of the clause on running mates that was set to come into effect in 2023 to settle succession disputes. Now an elected President has the sole power to appoint his deputies.

All these changes put paid to our gallant efforts to dismantle the imperial presidency, which were overwhelmingly supported by the people of Zimbabwe in 2013.

Obviously, Emmerson Mnangagwa has his eyes set on the 2023 elections and beyond. All signs point to a consolidation of political power and repurposing of state institutions towards this objective. It is fair to surmise that, given all the legal manoeuvres and weaponisation of the law, Mnangagwa wants a pliant, partisan, unprincipled and captured judiciary now, in the aftermath of the 2023 plebiscite, and beyond.

The legal strategy points to an obvious intention to extend the term of the current Chief Justice Luke Malaba whose constitutional tenure expires on 15 May 2021. If this happens, the over-age Chief Justice will be a grateful beneficiary of ZANU-PF patronage and largesse. Hence, he will be undoubtedly and decidedly compromised and vulnerable, and thus a safe pair of hands  to preside over any challenges to a fraudulent poll in 2023.

Furthermore, by having unelected deputies, Mnangagwa seeks unbridled power to manage the factions in ZANU-PF and undermine his rivals, thus allowing him and his clansmen to solely determine ZANU-PF succession.

How low can a leader sink? Pathetic.

Anyway, all that is in the future.

Back to our last GPA Principals’ meeting on the 2013 National Constitution, on 17 January 2013, when the running mate clause is brought up again as an area of dispute, given the nefarious and self-serving agreement between Mugabe and Tsvangirai, we easily and quickly duck the issue. We kick the can down the road by adopting the clause but suspending it for 10 years as outlined in the Sixth Schedule of the 2013 National Constitution in Paragraph 14.

With respect to the new office of Prosecutor-General and the National Prosecuting Authority (NPA), ZANU-PF is averse to an undefined occupancy of the office of the Prosecutor-General. They want to guarantee themselves protection from criminal prosecution. The guilty are afraid. Hence, they want to ensure the continuation of the current Attorney-General Johannes Tomana’s role as the Prosecutor-General – a man who, personally and institutionally, has been a GPA outstanding issue throughout the tenure of the GNU. ZANU-PF also wants to uphold and protect all of Tomana’s previous decisions. In the end, we compromise in deference to Mugabe, and ZANU-PF has its way. The outcome is captured in the transitional mechanism outlined the Sixth Schedule of the 2013 National Constitution in Paragraph 19.  

Back to the future. It is essential to clearly understand the historical background to the Constitution of Zimbabwe Amendment (No. 2) Bill which cruises through the Lower House on 20 April 2021. More importantly, the primitive, despotic and self-serving motivation behind the changes must be laid bare. Obviously, the seemingly positive provisions on women and youth quotas are just meant to camouflage the evil and narcissistic intentions of the Bill. No one is fooled. Nice try, though!

The history of and rationale for the Constitution of Zimbabwe Amendment (No. 2) presents a national teachable moment.

Clearly, there are lessons to be learnt across the political divide.

Going forward, it is instructive and imperative to note a fundamental shift of tactics in ZANU-PF, under the leadership of Emmerson Mnangagwa, towards tried and tested authoritarian methods: naked repression, a quick resort to state violence, unrestrained corruption and patronage, primitive tribalism and shameless clansmenship, an unquenched appetite for an acquiescent and rubber-stamp Parliament, harassment and co-optation of the opposition, and intimidation or persecution of non-compliant judges.

All these shenanigans are being perniciously anchored by retrogressive constitutional amendments and unbridled weaponisation of the law. More significantly, the new modus operandi is driven and inspired by an egregious and unimaginative one-party state logic that is devoid of any developmental ambition, economic thrust or national-interest strategy. Sad.

This is the state of play in Zimbabwe.

Indeed, there is work to be done.