Violet: Welcome to part 3 of the teleconference debate with Professor Welshman Ncube from the Mutambara MDC, Tendai Biti from the Tsvangirai MDC and Dr Lovemore Madhuku the chairperson of the National Constitution Assembly. This Tuesday the three discuss the contentious issue of the constitution.

The NCA has been strong advocates for a new and people driven constitution but it has been said that Dr Madhuku recently created a crisis in the democracy movement by amending the NCA constitution so he could stand for a third term.

We start with a comment from Dr Madhuku. How do you reply to these allegations?

Dr Madhuku: That is very difficult to agree with you. I didn't. It is impossible for an individual to amend the NCA constitution. What has been going on in the media is a misrepresentation of the facts. The NCA is not fighting for a constitution that cannot be amended. The NCA is fighting for the principle that constitutions must be made by the people. Making a constitution also means amending it, but that must be done by a people-driven process which is open. The NCA does not regard itself in the same position as a government. We are simply a struggle organization, and what happened at our AGM was an attempt to ensure that we remain a united organ that could fight for a new constitution and that involved retaining our leadership and making changes to our constitution which every organization does from time to time.

Violet: And Professor Ncube, what are your views on Dr Madhuku’s controversial third term?

Prof Ncube: Well, as a part of the MDC, we made our position; official position; well-known...Which is that in our view the precedent that was set by amending that constitution, not by Dr Madhuku, as he says, but by the plenary of the NCA which was there, for them to have acted collectively in the manner in which they acted, in our view, undermined the moral authority of the NCA in the eyes of the opponents of the NCA with the result that you will then always have a situation, when the NCA is raising its moral authority, and when Zanu PF and others have no answer to the argument that is being put forward, they will then immediately hide behind the question of the amendment of the NCA constitution.

In my own personal view, I still remain convinced that the leadership of the NCA, including Dr. Madhuku himself, could have remained in the NCA playing different roles in different positions, and providing the skilled leadership that he undoubtedly has without in fact amending the constitution but by playing other roles and different roles within the framework of the constitution. I do not think any of us on this side of the MDC have ever suggested that Dr. Madhuku or anyone else who had served a full term in the position they were in, would then have left the NCA. I think that people like Dr. Madhuku are important in the constitutional movement, but in my view, they could continue to play different roles in different positions. So as principally to avoid having to give a pretext to our detractors that we do not live or abide by the values that we profess, that is the view that we have held, and that we have indicated.

Violet: And, Tendai, what are your views on this? Do you agree that what happened with Dr Madhuku’s third term has undermined the moral authority of the NCA?

Tendai Biti: Well I think, I think, I think the point is well made that we should be averse to scoring own goals or doing things that can be seen to be scoring own goals or things that undermine our moral authority as civic voices and so forth, so I’ve no issue with that, but I think the challenge that faces us, is for us as civic society, as political parties to re-group and ensure that we are not detracted and that we are equal to the challenge that faces us, and I think that if it means re-expressing ourselves in other forms, it’s important.

I can tell you, on the record, that in the Party, in the movement that I belong to, we are busy trying to get our colleagues to agree on a Democracy Charter which would incorporate minimum standards in respect of a New Zimbabwe, for instance, the issue of a new constitution, for instance, the obligation to re-construct the economy and what kind of values we should want to see in that constitution, more or less, the five principles that the MDC, pre 12th October 2005, has always fought on, and so forth.

But, I want to emphasize, myself, that as an individual I have spent so much energy in the direction of Zanu PF such that I find it quite difficult to find myself being motivated by other struggles that, to me, are not attacking or dealing directly with Zanu PF. But, I hope that we will all be sober in that we craft a new direction and re-energise our people. I think that we betrayed people on the 12th October 2005 and I think that perhaps we have had second chances or third chances, and, this time around, I don’t think we can afford to continue betraying the people given the subjective situation in Zimbabwe.

Violet: And, before we move on to the issue of the constitution, Dr Madhuku, what is your reaction to the views that have been expressed?

Dr Madhuku: Well, just to say that I respect the views that they have been expressed, in fact, those are the views that we considered. The only issue is that we took a different position on that, and I believe that as to whether or not the NCA has lost any moral authority, history will judge. I mean, we still have many challenges ahead; let’s see, I mean...we can talk about this again a year from now.

Violet: And now, I just want to go to the issue of the constitution, the draft constitution that was reported to have been agreed upon between the MDC and Zanu PF. Now, this is a question to Professor Ncube. You were accused of going into secret deals with Zanu PF over a new constitution, is this true?

Professor Ncube: Well, a lot of accusations are directed at some of us. The truth of the matter is in fact that some time two or so years ago, the MDC leadership did ask me to lead the dialogue team with Zanu PF and during that process it was agreed that, after the failure of the formal dialogue, that we should explore informally the possibility of finding a way to remove obstacles to the stalemate which had taken place. (I did this) with the full mandate of the Party, and reported on a daily basis to the President of the Party on every aspect of the dialogue that did take place between myself and the Minister of Justice, Patrick Chinamasa.

We did consider the possibility of saying what are the things which divide us around a constitution other than process; what are the differences in content between the NCA constitution which the MDC subscribes to, the rejected constitution -- the commission constitution and the Lancaster House constitution. So, working with those three documents, we tried to find common ground, and, in the process, we did come up with a constitutional draft which constitutional draft, when we were discussing every part, was in fact presented to the leader of the MDC. There were times in fact, when I went to his house at 1.00 am, and finding him in pyjamas and would present documents that were required the following morning.

And, that document, far from being secret, was then taken to a formal retreat of what Tendai called the Top Six of the MDC in Bulawayo. It was fully debated with consultants and then a summary of it, a synopsis of it, was then taken to a formal meeting of the National Executive of the MDC, which was the same meeting, by the way, which passed the resolution suspending participation in further elections just before the Seke by-elections. And in fact the major reason why that decision was taken, was that since there had been some progress in actually bridging the gap between Zanu PF and the MDC over a constitution, it appeared pointless to continue participating in by-elections under the old constitution and the rules when there was a possibility that a new constitution could come into effect.

And, the principle of that new constitution was that it was to be an agreement between the MDC and Zanu PF in terms of content. The thing which then had remained unresolved was how to then move from that particular document which would have been a transitional sort of document - which is an agreement between Zanu PF and the MDC - the question was then how were you going to move beyond that document to a fully Zimbabwean constitution which would have been drafted by the whole people of Zimbabwe in a process which was transparent, open, participatory. That was what remained unresolved, but, needless to say, we all know now, that before the MDC could take the matter any further, the Zanu PF Politburo then rejected that approach and that was the end of the story. So, there was absolutely nothing secret about it, and it is a pity that sometimes some of our colleagues along the line wish to make political capital out of things where no political capital should be made.

Violet: Now Tendai, your camp was reported as having distanced, you know, yourselves from that draft.

Tendai Biti: I am not aware of the reports that you are talking about - vis a vis the negotiations that were taking place in 2003 and 2004. I think it’s common knowledge that there has always been a desire and an interest to ensure that there is a constitution and that the constitution is at the fore of our democratic transformation in Zimbabwe which is why I spent a lot of time referring to our Road Map and it being simply an initiator of dialogue around the obligation to have a new constitution and the obligation to have a new constitution before we all go to an election and consequently the obligation to have free and fair elections in terms of that constitution.

Violet: But, is your party aware of the draft constitution that was reached between Professor Welshman Ncube and Justice Minister Patrick Chinamasa?

Tendai Biti: I think, I think if you are asking me about whether the party mandated Professor Welshman Ncube to negotiate with Patrick Chinamasa after 2003, I think that is common because that is in dispute. So I don’t think that….

Violet: So what is in dispute?

Tendai Biti: No, no, no, you are trying to create a dispute. You are trying to create a dispute.

Violet: No, no, no, I am not trying to create a dispute. There was a report you know saying that…

Tendai Biti: I’m not aware of any statement that disowned that. I certainly didn’t make it and I don’t think that Chamisa said that. I think that the problems that I am aware of are problems connected and surrounding the constitution that was put in parliament by Honorable Coltart during the debate of Constitutional Amendment Number 17. I think there was an attempt to say where is this constitution coming from and where is this constitution originating from, particularly concerns about the provision that dealt with the qualifications of the Titular Executive President. But that is a totally different debate altogether.

Violet: Now, Dr Madhuku, what do you think is the way forward on the issue of the constitution?

Dr Madhuku: Well I think the way forward should be to discuss the processes that would involve what we would call a people-driven process. There is still, at the moment no agreement as to the processes that should take place. Having an agreement that we need a new constitution, we have to put pressure on Mugabe to accept the need for a new constitution. Once we cross that pressure point and we get Zanu PF to agree, we then have to agree on the process of how to go about it. On one hand, there is a proposal to get a constitutional conference attended by all stakeholders, political parties, civic groups, churches and so forth and starting from the premise of the draft that exists; the Chidyausiku one that was rejected, the NCA draft, and any other proposals, and that conference deliberates on the content of a new constitution which would then be taken to a referendum. That appears to be some starting point to debating the constitution. So, we have to put pressure on the regime to have it accept the need for a new constitution, then, once that need is accepted by the regime here, we debate the processes that we should use to get the peoples’ inputs, and then, eventually, get to a referendum.

Violet: What about that draft that we were talking about earlier? Do you think it’s a starting point for negotiations with the regime Dr Madhuku?

Dr Madhuku: Well, we don’t know about the draft, I think it was really one thing between Zanu PF and MDC; it should simply be the inputs by the two political parties. We would not believe it should be taken into account. I mean what we need is the fact that Zimbabweans must author their own constitution and Zimbabweans are in different forums; some Churches might bring a draft, I’m sure they are working on drafts. And so, we cannot stop people bringing drafts. I think it would be wrong in principle to have that draft taken into account.

Violet: And, Professor Ncube, I’m not trying to create a dispute, but I just need some clarification on this draft. What happened to it?

Professor Ncube: Well, as far as I know, the original copy belonging to the MDC is with Morgan Tsvangirai and the other copies of course, probably with Robert Mugabe or Patrick Chinamasa. But, the fact that, when, as far as we understand, when it went to Zanu PF, Zanu PF said ‘no, they are not interested in going that route’, they wanted to go immediately to the elections and they called the March 2005 election. So, the net effect is that that draft never saw the light of day, so it’s just another piece of paper lying somewhere in the library. I disagree with Dr. Madhuku in terms of its relevance; like any other draft it can be used as the various documents which are there on the ground when people start to say what is the documentation, what is the body of knowledge there without according to it any superior status. You simply say, it’s just like the rejected constitution which was rejected by the people, it can be put on the table and also be debated as to say what exactly are the differences that exist among Zimbabweans on content, assuming we then have found a gateway on process. All the available body of knowledge should, in my view, be placed on the table, and things should be taken from one document to another if they are found to be having merit in them.

Violet: But, how many stakeholders were consulted when you were drafting that constitution.

Professor Ncube: That is not the point. It is clear that the document was an attempt to reconcile two principle documents by two individuals working in consultation with their principles in the respective political parties that they represented, and, there is no claim at all that it represents any collective views of the people of Zimbabwe. Simply, the claim is that it is a body of knowledge which attempted to reconcile the two documents and you will be surprised actually at the extent of commonality; of agreement between the rejected constitution and in fact the NCA constitution. The differences arose over important issues but which do not number more than three or four issues; fundamental issues but which were not extensive.

Violet: Now Tendai, given the way things are, you know, the crisis in the pro-democracy movement, how do you propose a new constitution?

Tendai Biti: Well, we have already defined and made our proposals in our Road Map and in our Road Map we put a seven-stage plan that must acknowledge the inevitability of negotiations between the stakeholders in Zimbabwe on process. But the key stages being agreement towards the constitutional conference or the mechanism in respect of which the constitution is going to be made, and, as I said before, we are not seeking to impose that route on anyone. You will recall that as a Party; as the MDC, before the 12th October 2005 our position was a two-staged approach; that we go the CODESA route first of agreeing on a transitional constitution, which constitution will then be used to run an election, and after an election the new government would then create the mechanism for the writing of a constitution on the basis that the members of parliament that are elected in that transitional election are not only members of parliament but members of the constitutional assembly.

But, some of us have developed strong views about the two-staged approach precisely because of the experience in Kenya. That debate for us is resolved simply by saying; ‘look, let’s agree on the mechanism of writing and crafting a constitution by Zimbabweans before an election.’ And, our proposal would be that ‘look, a constitutional conference could be a good starting point. I know that you are going to quarrel over the numbers, quantity and quality of those who should sit constitutional conference but in my view, and this is a personal opinion that many of us hold, you can have even two million people in that conference, in that constitutional conference, but the fact of the matter is that Zimbabweans, and many constituencies in Zimbabwe, have been writing constitutions so you should be able to arrive at a great deal of agreement on many of the major arguments and issues in that constitution.

So, in my opinion, once you agree on the process of writing the constitution, the actual drafting of the constitution, to the extent that Zimbabweans have been writing constitution since perhaps 1998, should not take you, should not detain you a long time. We have been writing constitutions on the ground. So, that is our own effort to say ‘look, the issue of a constitutional conference could be a starting point’, but, if people want the more democratic route, as in Uganda, so be it. To me that principle of a constitutional conference is not stuck in stone. I think what is stuck in stone, to me, is the obligation to have a constitution by all Zimbabweans and for all Zimbabweans, and, of course acceptance of that constitution through a referendum and then finally, the issue of free and fair elections. Those are the principles that are caste in stone to me but everything else, I think, is not inviolable.

Violet: We continue the series of teleconference debates with the principal architects of the pro democracy movement next Tuesday. Next week the panelists will discuss the relationship between the two MDCs and civil society.

Audio interview can be heard on SW Radio Africa’s Hot Seat programme Tues 25 July 2006 – archives. www.swradioafrica.com

Comments and feedback can be emailed to violet@swradioafrica.com
JOIN THE DEBATE ON THIS ARTICLE ON THE NEWZIMBABWE.COM FORUMS
newsdesk@newzimbabwe.com