Adoption of the 2013 Constitution of Zim

The late former president Robert Mugabe endorsing the new constitution while former vice-president Joice Mujuru and former deputy prime minister Arthur Mutambara look on.

BELOW is a book excerpt from In Search of the Elusive Zimbabwean Dream, Volume III (Ideas & Solutions) by Professor Arthur Mutambara.

On Monday morning of January 17 2013, we have our final meeting on the national governing charter at the State House in Harare. At this plenary, we finally agree on Zimbabwe’s New Constitution.

As explained earlier, we have the GNU Principals, the global political agreement (GPA) negotiators, the Minister of Parliamentary Affairs and the three Copac co-chairpersons in attendance.

It is a robust and no-holds-barred discussion. However, yes, we have achieved an agreement.

Zimbabwe's three main political parties, Zanu PF and the two Movement for Democratic Change (MDC) parties, have found each other. We have been at odds for months, arguing over various provisions and texts of the new charter.

A draft of the New Constitution was released in July 2012 by our parliamentary committee — Copac — but consensus had since proven elusive.

Now we have arrived.

“We are glad to say that we have now come to the conclusion of the exercise and all parties are ... generally agreed and the finalisation of the draft is now being made,” President Robert Mugabe says to the media after our indoor meeting.

He continues: “We have at last come to the end of this marathon exercise.”

The drafting of our country’s prospective New Constitution has been a work in progress since February 2009, when we consummated the power-sharing government of national unity (GNU) following the violent and fraudulent elections of 2008, whose outcomes we viciously challenged.

The draft charter, whose completion, many doubted, is more than two years behind schedule. Its drafting is delayed by partisan disagreements over numerous issues, including the extent of presidential powers, term limits and the matter of running mates.

Tsvangirai describes the breakthrough as particularly important:

 “We have reached a defining moment for the country … I am sure our people’s patience has been tested severely. This concludes a long journey we have travelled trying to reach this national process.”

In my remarks, I am brief, philosophical, but emphatic:

“I appeal to all of us, ordinary citizens and leaders, across the political divide to reflect on, and embrace, the three key enablers that allowed us to find each other leading to this agreement on the New Constitution, namely (1) political will, (2) shared national interest, and (3) compromise.

Where there is political will rooted in servant leadership, common ground can always be established.

“With a shared national interest among compatriots, an understanding and meeting of the minds are always possible.

Compromise is not a dirty word. As citizens, when we have competing interests and ambitions, we must accommodate each other by compromising our extreme positions in pursuit of the national interest.

“Agreement on the new charter is ample evidence and a dramatic manifestation of the fact that, as Zimbabweans, there is more that unites us than that which divides us. Going forward, let us understand and internalise the drivers of the accommodation process that produced this document — our own Magna Carta.

“Let us use the lessons learnt — the importance of political will, shared national interest and compromise — in the resolution of any future challenges that may confront this nation.”

Those are my few words as Zimbabweans of all political persuasions and affiliations bask in the glory of our collective and national achievement on that sunny Thursday morning of 17 January 2013.

When the media inquire about the sticking points in developing the new draft constitution, Mugabe emphasises the need to focus ahead and not dwell on prior areas of contention.

He says: “Let us not look at what the difficulties were. Those are now part of our history. We want them forgotten.”

He is right. We need to move on.

This very day — 17 January 2013 — on which we agree on a new national charter, is the same day we lose vice-president John Nkomo. His demise occurs after a long illness, and was being treated in South Africa for cancer.

Nkomo, 78, was vice-president of Zimbabwe alongside Joice Mujuru. He had assumed the role two years following the death of vice-president Joseph Msika.

“We have lost our Vice President John Landa Nkomo. He was suffering for a long time with cancer. Suddenly, we heard his situation had become worse ... deteriorated from yesterday,” Mugabe announces at the end of our press conference on the New Constitution.

After our agreement as political leaders on January 17 2013, the next step is the final stage in the constitution-making process – the fifth phase — Formal Adoption of the New Constitution.

This involves a general vote on the charter by the citizenry, the document’s passage in both Houses of the Parliament of Zimbabwe, and its signing into law by the country’s President.

It is important to note that this fifth phase is less contentious. The (outreach) consultative processes, all-stakeholder meetings, brutal negotiations and hard compromises are over.

As presented earlier in the book, we have successfully navigated through the preceding four phases of the constitution-making process: (1) preparatory, (2) consultation, (3) drafting, and (4) all stakeholder endorsement.

The fourth phase is completed by the agreement of January 17 2013, discussed above.

As we embark on the fifth phase, there is a minor disagreement among us about the timing of the referendum.

We from the MDC parties would prefer a delay to allow time to implement political and electoral reforms before the next polls.

We know that soon after the adoption of the new charter, Zanu PF will push for elections without the necessary reforms to enable a free, fair and credible contest.

After much disputation and wrangling, Robert Mugabe unilaterally sets the dates for the National Referendum on the New Constitution as March 16 and 17 2013.

He insists that, as President of Zimbabwe, it is his constitutional right to do so.We relent and let it slide.

It is instructive to note that Zanu PF also takes the referendum as an opportunity to mobilise their people for the upcoming general elections. While they campaign for a “Yes Vote” in favour of the New Constitution, they are also psychologically and logistically preparing the citizenry to vote for them in the next 2013 polls.

This National Referendum on the new charter is in keeping with the constitution-making process outlined in Article VI of the GPA. During this exercise, the people of Zimbabwe vote on whether they accept or reject the draft charter.

It has been a long journey in pursuit of a new national charter, where the referendum is shifted from September 2011 to 30 June 2012, and then further postponed to an unknown date. Nevertheless, we have finally arrived. The referendum is on.

There is a large turnout — 3 326 082 people cast their votes. Of these participants, 94,49% (3 079 966) support the charter, while 5,51% (179 489) vote against it. The 1,71%balance (56 627) constitutes invalid or blank entries. An overwhelming majority thus approves the new national law.

The people have endorsed a constitution curbing presidential powers after 33 years of Robert Mugabe's rule.

 This puts the nation closer to harmonised national elections, but not that fast.

Major electoral and political reforms must still be implemented to level the playing field. Of the massive turnout during the referendum, most voters are in the rural areas that traditionally support Mugabe’s Zanu PF party. This signals clear and present peril to the opposition.

The Zanu PF strategy of using the vote on the constitution as a political mobilisation opportunity is bearing fruit.

 However, we are naively too busy with government chores to comprehend the implications fully. Time the magician will tell.

The New Constitution sets a maximum of two five-year terms for the presidency.Presidential decrees will now require majority backing in the Cabinet while declaring emergency rule and dissolving Parliament will need the sanctioning by two-thirds of lawmakers.

Indeed, we have delivered a blow to the imperial presidency in Zimbabwe.

These changes will take effect after the next election later this year (2013). Slowly but surely, we are achieving our GNU agenda.

Drafting the New Constitution and the referendum to adopt it were conditions of our 2008 power-sharing deal — the GPA.Thursday, May 2013 9, is a glorious day in the Parliament of Zimbabwe.

The Constitution of Zimbabwe Amendment (No. 20) Bill — which brings into effect our New Constitution — is unanimously endorsed amid pomp and ceremony across the political divide. It has taken three days of non-contentious deliberations.

Honourable Lovemore Moyo, Speaker of the House of Assembly, announces that 156 MPs (way above the 144 required for a quorum) have voted in favour of the proposed new governance charter.

What a proud moment for our country and collective political leadership! Members of Parliament from the Zanu PF and MDC parties break into song and dance, trying to outdo each other in a celebratory atmosphere, throwing up their party symbols in jest.

Well, well, well. It is a victory for all political parties — a triumph for Zimbabwe.

After the House of Assembly, the Bill will be tabled in the Senate next Tuesday, where it is expected to pass without much drama or contestation.

On Tuesday,  May 14 2013, everything flows smoothly in the Senate. Deliberations on the charter go meticulously according to plan. Zimbabwe’s Upper House of Parliament approves the draft constitution with minor amendments.

In a lively chamber, Senate President Edna Madzongwe applauds the Senators for coming out in their numbers to support the Bill. All the Senators — among them traditional leaders — who debate on the bill hail Zimbabwe for producing its own home-grown charter after years of being governed under the Lancaster House Constitution adopted in London in December 1979.It is a festive and celebratory affair.

However, Minster Matinenga reminds the exuberant Senators that the New Constitution, once in effect, can only make a difference in the lives of Zimbabwean citizens if it is respected. He is on point.

Beyond the document, there is a need for both constitutionality and constitutionalism in the country.

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Mutambara is the director and full professor at the Institute for the Future of Knowledge, University of Johannesburg in South Africa.



After the Senate, the next day, the Constitution Bill goes back to the Lower House so that the Lawmakers can address the few issues raised by the Senate.

On Wednesday, 15 May 2013, the Lower House passes the Bill after it approves three amendments made by the Senate the previous day. Speaker of Parliament, Lovemore Moyo, announces that no Lawmaker has opposed the passage of the Bill. In fact, all the 148 MPs present vote in affirmation.

The parliamentary process is over!

Consequently, the Constitution Bill will now be sent to President Robert Mugabe, who is expected to sign it into law, clearing the path for general elections.

Zanu PF insists the polls should be held by June 29 2013 when the GPA Parliament’s five-year term draws to an end, but we in the MDC parties are emphasising the need to implement all reforms before elections.

“It is not a question of when the elections can take place, but rather the calibre and quality of the elections. The outcome of the polls must not be disputed.”

I keep articulating this and restating it, ad nauseam, like a broken polyvinyl record, to anyone who bothers to listen.

Anyway, we are not there yet.

With the referendum and parliamentary processes out of the way, on a relatively cool Wednesday mid-morning of May 22 2013, the stage is set for the momentous signing occasion at State House in Harare.

There is a huge tent filled to the rafters with senior members of the three branches of the State – the Judiciary, Legislature and Executive – together with civil society leaders and key executive members of our political parties.

We are all seated and expectant when an ebullient and buoyant President Mugabe confidently strides onto the front platform reserved for the top leadership, like a colossus.

I am sitting next to vice-president Mujuru – who is on my left – and on my right are Prof. Welshman Ncube and Chief Justice Godfrey Chidyausiku. Prime Minister Morgan Tsvangirai is seated to the right of Mujuru. A majestic, distinctive, imposing empty chair is between Morgan and Joice. It is reserved for President Mugabe.

As Mugabe joins us, we all stand up as protocol demands. A visibly excited Mugabe gives his deputy, Mujuru, a clumsy kiss on the cheek and an extended embrace.

Given what everyone suspects happened to Solomon Mujuru – in that death in a suspicious fire – it all looks awkward and distasteful.

Mugabe then proceeds to shake hands with the rest of us at the top table. After that, we all retake our seats.

Following a few remarks from the director of ceremonies, Ambassador Munyaradzi Kajese, the deed is done.

An exuberant and beaming Robert Mugabe – flanked by Prime Minister Tsvangirai, Mujuru and me – signs multiple copies of the new charter to wild cheers and applause from the massive crowd.

There we are!

We now have a new supreme law of the land in Zimbabwe.

What a historic moment. What a glorious day!

The official title of our new governance charter is “Constitution of Zimbabwe Amendment (No. 20) Act, 2013”. It is also loosely referred to as the “2013 National Constitution”.

After the signature exercise, the constitutional and parliamentary affairs minister – Matinenga – and the three GNU Principals are given an opportunity to make a few remarks. Mugabe is in his element as he speaks after signing the New Constitution into law:

“Zanu PF versus MDC. You choose; you vote for the person of your choice. Let us not fight it. Let us do it in a peaceful way. That is what this document of today is telling us. Let us be peaceful … We are all of us still there, but tomorrow, we will be of yesterday. Gone. What shall we have left our country? Disunity? Peace?”

Matinenga, the Constitutional and Parliamentary Affairs Minister, says:“This day is a historic day. It is about the future. I can assure you that this document before us is a good one.”

In his remarks, Tsvangirai says the charter had set Zimbabwe “on a new path” after nearly a decade of economic decline and political violence that started in 2000.

In my speech, I emphasise four imperatives: (1) the historic and historical significance of the event; (2) the importance of learning from the constitution-making exercise; (3) why constitutionalism and constitutionality are more critical than the mere charter itself; and (4) the need to link the New Constitution to the development of national economic solutions.

I start as follows:“Zimbabwe’s New Constitution has been signed into law. This is a great day for our nation as we crafted this document on our own as Zimbabweans, without the supervision or interference of foreigners. It is a dramatic improvement on the Lancaster House Constitution.

“Well done, Zimbabwe.We are now masters of our own destiny as this new legal dispensation defines and directs the trajectory of our nation into posterity.As we celebrate this outstanding achievement, let us reflect and pick up some lessons as a polity and as a nation …”

My full remarks on this heroic day are presented elsewhere in this book.

Yes, Zimbabwe has now formally adopted a New Constitution. It is a new era, indeed.There is a media frenzy over this historic event.

While the new charter removes the post of Prime Minister and limits presidential terms to two five-year stints, the constitution does not apply retroactively. This clears the way for 89-year-old President Mugabe to extend his rule by 10 more years potentially.

He could finish his last term at the ripe age of 99 years!How absurd! How despicable!It is preposterous, indeed.

Mugabe was adamant about including this “non-retroactive” provision in our tedious negotiations.It had to be adopted. Otherwise, there would have been no New Constitution.Nonetheless, we have made progress.

Mugabe has signed Zimbabwe’s New Constitution into law, thus clearing the path to crucial and game-changing elections sometime this year – 2013.

The five-year coalition Parliament, formed under the GPA, expires on 29 June 2013, and harmonised parliamentary and presidential polls should follow within 90 days from that date.

The actual election date is yet to be pronounced.Mugabe and his Zanu PF want the polls (without any political or electoral reforms) as soon as possible. We insist on implementing reforms first to ensure free, fair and credible elections.

There is no guessing who wins this battle of wits between the crooked but strategic Zanu PF mandarins and the well-meaning but naïve MDC operatives.

  • Prof. Arthur G.O. Mutambara is the Director and Full Professor of the Institute for the Future of Knowledge (IFK) at the University of Johannesburg in South Africa.




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