(Mar. 26, 2013) On March 16, 2013, in a nationwide referendum held in <?Zimbabwe, almost 95% of those who cast votes approved the country's draft new constitution. (Samuel Franklin, Zimbabwe Voters Approve New Constitution, PAPER CHASE NEWSBURST (Mar. 19, 2013).) The turnout of more than 3.3 million voters, while low in the view of some observers, represented more than half of the six million people eligible to vote and “was higher than many analysts had expected.” (Zimbabwe Approves New Constitution, BBC NEWS (Mar. 19, 2013).) Zimbabwe’s population is estimated to be about 13.2 million. (Zimbabwe, CIA – THE WORLD FACTBOOK (last updated Mar. 15, 2013).)
Adoption of a new constitution paves the way for elections to be held later this year. In January 2013, Zimbabwe President Robert Mugabe and Prime Minister Morgan Tsvangirai, political opponents who formed a coalition government in 2008 after a highly contested election, reached agreement on the draft constitution. (Franklin, supra; Sarah Paulsworth, Zimbabwe President, PM Reach Agreement on New Constitution, PAPER CHASE NEWSBURST (Jan. 18, 2013).)
The document was drafted by the Constitution Parliamentary Select Committee (COPAC). COPAC comprises 25 members, appointed by the Committee on Standing Rules and Orders of Zimbabwe’s Parliament from the three political parties represented in the Parliament. Those parties are Mugabe’sZimbabwe African National Union – Patriotic Front, Tsvangirai’s Movement for Democratic Change, andWelshman Ncube’s faction of the Movement for Democratic Change. (Constitution Select Committee, COPAC website (last visited Mar. 21, 2013); Zimbabwe, Freedom House website (last visited Mar. 22, 2013).)
COPAC issued the finalized draft constitution on January 31, 2013. (Zimbabwe Draft Constitution, COPAC website (last visited Mar. 21, 2013).) The upper house of the Parliament approved the draft document on February 7. (Zim Parliament OKs Draft Constitution, NEWS24 (Feb. 7, 2013); see also Constance Johnson, Zimbabwe: New Constitution Approved by Parliamentary Committee, GLOBAL LEGAL MONITOR (Feb. 7, 2013).)
Key Features of the Draft Constitution
The presidency and presidential powers:
- limitation of the President’s term of office to two five-year terms (without retroactive application, however, making 89-year-old Mugabe, who has served as President since 1980, eligible to run in the next election and potentially able to remain in office for another ten years);
- the requirement that presidential decrees be backed by a majority of the Cabinet and that any declaration of emergency rule or dissolution of Parliament be approved by a two-thirds majority of the Members of Parliament;
- the requirement that, during the period of the first ten years of the Constitution’s implementation, if the President dies or resigns from office, the new President will be selected by the (former) President’s party (critics point out that this means that a President not voted for by the citizenry could take power); and
- a new provision, in the article on presidential immunity, allowing the possible use of the defense of good faith in any proceedings brought against a former President for anything done or omitted to be done in his or her official capacity while he or she was President.
The judiciary and dispensation of justice:
- formation of a Constitutional Court, but for the first seven years after the Constitution takes effect, it will be composed of judges of the country’s current Supreme Court (who, according to some press accounts, have been discredited due to their lack of independence from the Mugabe government);
- strengthened restrictions on use of the death penalty; and
- a prohibition against all forms of torture and cruel, inhuman, or degrading treatment or punishment.
- increase in the number of members of the National Assembly (formerly called the House of Assembly) from 210 to 270 for the first two parliaments after the effective date of the new constitution, due to the addition of 60 female members;
- decrease in the number of members of the Senate, from 93 to 88; and
- elimination of the five Senate seats allotted for appointment by the President and of two of the ten seats set aside for governors, and inclusion of two seats set aside for persons with disabilities.
Rights and freedoms:
- strengthening of the bill of rights, particularly with respect to the rights of women and girls;
- guarantees of freedom of expression and of belief;
- prohibition against same-sex marriage;
- inclusion of a right-to-life provision, stipulating that “[a]n Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law” (Zimbabwe Draft Constitution, art. 48(3)); and
- imposition on the state of the duty to ensure access to health, education, food, shelter, and legal aid.
- presumption of Zimbabwean citizenship for children found in Zimbabwe who are or appear to be less than 15 years of age, whose nationality and parents are unknown.
(Franklin, supra; Cris Chinaka, Zimbabwe Approves Constitution Curbing Presidential Powers, REUTERS (Mar. 19, 2013); Ben Freeth, Zimbabwe Referendum Marred by Intimidation and Arrests, THE GUARDIAN (Mar. 18, 2013); Petina Gappah, Zimbabwe Constitution: This Referendum Apathy Suits Mugabe, THE GUARDIAN (Mar. 18, 2013); Lydia Polgreen, 2 Years Late, Zimbabwe Votes on New Constitution, THE NEW YORK TIMES (Mar. 16, 2013); Zimbabwe Draft Constitution, supra.)
The controversial issue of land ownership has not been resolved by the draft new constitution. It fails to provide strong protections for land ownership, allegedly allowing government acquisition of land without due legal process and falling short of international norms of non-discrimination (e.g., compensation for expropriated land will depend on whether the landholder is “indigenous”). (Freeth, supra.)
Problems with the Referendum Process and Its Aftermath
A “Vote No” campaign launched against adoption of the draft new constitution objected not only to a number of provisions of the document, but also to the drafting itself and the referendum process. News reports indicated that many Zimbabweans had no access to the document, given that “a reported 90,000 copies of the final draft were printed for the 6.6 million voters,” and that those who did have access to it had little time to read it. (Id.) Many more voters, moreover, allegedly “have no idea what they are voting for, even though they may be going to vote ‘Yes’, as instructed by the country’s major political parties.” (Editorial, Referendum Farce Must Proceed Peacefully, NEWS DAY (Mar. 16, 2013).)
Furthermore, the day after the referendum, the Zimbabwean police reportedly raided the home of an advisor to Prime Minister Tsvangirai and arrested four officials; three reportedly on charges of impersonating officers, and the fourth, prominent human rights lawyer Beatrice Mtetwa, for “obstructing justice.” (Polgreen, supra.) The police defied a high court ruling ordering Mtetwa’s release, and it was ordered subsequently that she be held in custody until April 3. (Lydia Polgreen, Zimbabwe Police Defy Order to Free Lawyer, Group Says, THE NEW YORK TIMES (Mar. 18, 2013); Lydia Polgreen, Zimbabwe Rights Lawyer Denied Bail, THE NEW YORK TIMES (Mar. 20, 2013).) On March 25, however, Mtetwa was granted bail and ordered to be released. (Violet Gonda, Zimbabwe: Beatrice Mtetwa Released, SW RADIO AFRICA (London) (Mar.25, 2013).)
According to the Interparty Agreement, if the referendum were approved, it should be published in the official gazette within one month of the date of the referendum (art. 6.1(c)(ix)), and the draft should be introduced in Parliament no later than one month after the expiration of a 30-day period from the date of publication (art. 6.1(c)(x)). (The Constitution of the Republic of Zimbabwe, 1979 (as Amended to 2009), Annex, Schedule 10 (Section 117), Article VI of Interparty Political Agreement, CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, online subscription database.) The Sixth Schedule of the draft new constitution prescribes that most provisions will come into force on the date of publication, but that some will become effective only on the day on which the President elected pursuant to the new constitution assumes office. (Zimbabwe Draft Constitution, Sch. 6(3)(1-2), supra.)
A two-thirds majority of Members of Parliament is required for final approval of the draft new constitution before it can be sent on to President Mugabe for his assent. (Thumbs Up for New Zimbabwean Constitution, DEUTSCHE WELLE (Mar. 18, 2013).)