US embassy cable - 05HARARE1156

C O N F I D E N T I A L SECTION 01 OF 04 HARARE 001156 
 
SIPDIS 
 
AF/S FOR B. NEULING 
NSC FOR SENIOR AFRICA DIRECTOR C. COURVILLE 
TREASURY FOR J. RALYEA 
 
E.O. 12958: DECL: 12/31/2010 
TAGS: PGOV, PREL, PHUM, ECON, ZI, Parliamentary Affairs 
SUBJECT: CONSTITUTIONAL REFORM BILL GAZETTED 
 
REF: A. GABORONE 1092 
     B. HARARE 804 
 
Classified By: Charge d'Affaires, a.i., Eric T. Schultz under Section 1 
.4 b/d 
 
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Summary 
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1. (U) The GOZ published a bill to amend the constitution on 
July 15.  Proposed amendments include:  transfer of title to 
the state of land acquired during land reform; elimination of 
judicial challenges to land acquisitions; the addition of a 
Senate to the legislature; additional restrictions on freedom 
of movement; and changes to the bodies that run elections. 
Civil society and the opposition MDC have been vocal in 
objecting to the bill, arguing that it would abridge human 
rights and further harm the country,s economy.  Critics also 
object to constitutional changes via a parliamentary bill, 
arguing that the constitution requires a major overhaul with 
broad input from citizens and a referendum.  End Summary 
 
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Status of Bill 
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2. (U) The GOZ published the much-anticipated Constitution of 
Zimbabwe Amendment (17) Bill in the government gazette on 
July 15.  The Government submitted the bill to Parliament on 
August 18.  The Parliamentary Portfolio Committee for 
Justice, Legal and Parliamentary Affairs held a public 
hearing in Harare on August 4 at which statements from the 
public were read and accepted.  The bill will have two 
additional readings in Parliament before it comes to a vote. 
ZANU-PF,s two-thirds parliamentary majority, secured in the 
tainted March elections, allows it to change the constitution 
while avoiding a public referendum.  If passed, the changes 
would be the 17th amendment to the 1979 Lancaster House 
constitution. 
 
3. (C) MDC Shadow Minister for Justice, Parliamentary and 
Legal Affairs David Coltart told poloff on August 16 that the 
MDC was developing a detailed counterproposal that MDC MPs 
planned to present to Parliament as amendments to the bill. 
(Note:  The MDC used this tactic when last year's Electoral 
Bill was before Parliament, and their amendments stimulated a 
great deal of debate and some eventual changes to the bill). 
He said the counterproposal was not final and he could not 
yet discuss its details. 
 
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No Court Review of Land Reform, State Takes Land Titles 
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4. (U) The bill,s most controversial reform is a new section 
to the constitution, which grants title to the government of 
all agricultural land acquired in the past under the land 
reform program and any land that may be acquired in the 
future.  Those who have previously been allocated land under 
the program would hold a 99-year lease that could be 
inherited but not otherwise transferred without permission of 
the state.  It would remove the right of landowners whose 
land has been acquired to challenge the acquisition in court. 
 To acquire land in the future, the government would only 
need to publish an acquisition notice, and the title would 
automatically revert to the state after 30 days, with no 
compensation due the former owner except for improvements. 
The government could acquire any agricultural land for any 
purpose. 
 
5. (U) At the August 4 hearing, speakers challenged this 
clause of the bill on the grounds that it would restrict 
property rights.  The term &agricultural8 is not defined. 
The Human Rights NGO Forum maintained it could be interpreted 
in the future to include any property, even houses and 
businesses within cities.  The Law Society said that 
eliminating judicial review of acquisitions would further 
erode public confidence in the courts, which was already 
suffering under the perception that the judicial system was 
used for political ends.  The Commercial Farmers Union 
commented that removing legal challenges would prevent 
landowners from resolving mistakes if the state had not 
intended to acquire their land. 
6. (C) Critics also noted that denying title to individuals 
would further harm the economy because individuals allocated 
land could not use it as collateral for loans to purchase 
agricultural inputs or make improvements.  Justice for 
Agriculture argued that transferring title to the government 
would move the country,s economy backward to a feudal system 
while the rest of the world was moving toward the freehold 
system that had made developed countries so successful. 
Coltart told poloff that MDC leaders had pointed out to 
President Mbeki that the loan under discussion from South 
Africa would not do much to aid Zimbabwe,s economy when the 
GOZ was proposing constitutional reforms that would do 
further damage. 
 
7. (U) Relevant to the bill's land tenure provisions, the 
GOZ's Mid-Term Fiscal Policy Review presented to Parliament 
on August 16 (septel) noted that investment on allocated 
farms was being undermined by uncertainty over security of 
tenure.  It reiterated that the government would be issuing 
99-year leases, which it described as giving confidence to 
the financial sector to finance agriculture.  Details of the 
terms of 99-year leases were not provided. 
 
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Return of the Senate 
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8. (C) The bill would also reintroduce a 66-member Senate, 
comprised of five members elected from each of the ten 
provinces, the president and deputy president of the Council 
of Chiefs, eight chiefs elected by the Council of Chiefs, and 
six appointed by the President.  Speakers at the August 4 
hearing objected to the number of appointed Senators and 
expressed concern that Mugabe would appoint failed 
parliamentary candidates.  The Zimbabwe Election Support 
Network (ZESN) suggested an 80-member Senate to be popularly 
elected but added that now was not the right time to take on 
the expense of adding a Senate when the country had other 
priorities and resources were scarce.  Coltart told poloff 
that a bicameral legislature might be good but that it should 
only be done as part of a complete overhaul of the 
legislature.  The Senate proposed in the bill did nothing to 
address the fundamental imbalance of power between the 
executive and legislature.  He added that, based on last 
year,s budget, establishment of the Senate would cost at a 
minimum ZWD 30 billion (roughly USD 1.7 million). 
 
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Freedom of Movement Restrictions 
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9. (U) The bill would also amend the section of the 
Constitution dealing with the ability of the government to 
restrict freedom of movement.  Currently, the constitution 
does not limit the right to leave the country.  The bill 
would permit limitation of the right to leave based on 
national interest.  The preamble to the bill states that 
terrorism is an example of the &type of mischief that may 
justify the imposition of the restrictions on the freedom of 
movement.8 
 
10. (C) Coltart said it was clear the government was laying 
the groundwork for a law that would make it easier to deny 
and revoke passports of prominent members of civil society 
who traveled abroad and publicized the true state of affairs 
in the country.  He said the GOZ considered this an important 
step in quashing all flow of information out of the country. 
The use of the word &terrorism8 in the bill was intended to 
hide the real motive behind the amendment and make it 
palatable to foreign governments.  On August 19, Jenni 
Williams of Women of Zimbabwe Arise! (WOZA), who has been 
invited to speak in the U.S., quipped to poloff that she 
needed to do all her travel now before the bill was passed 
and the government confiscated her passport.  She said that 
the government wanted to prevent civil society from raising 
awareness about the country,s human rights situation and 
mentioned the workshop she and other Zimbabwean human rights 
activists attended in Botswana where the Zimbabwean 
ambassador denounced the speakers for telling &lies8 about 
their country (ref A). 
 
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Electoral Reform 
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11. (U) The bill would abolish the Electoral Supervisory 
Commission (ESC), currently a constitutional body, and 
consolidate its functions with the Zimbabwe Electoral 
Commission (ZEC), which was established by law in December 
2004.  The ESC could not be abolished by the law creating the 
ZEC, because it was established by the constitution, and the 
law was not clear as to what responsibilities the ESC would 
retain.  The new, slightly expanded ZEC would consist of a 
chair, appointed by the President in consultation with the 
Judicial Service Commission, and six additional members, 
appointed by the President from a list of nine nominees 
submitted by the Committee on Standing Rules and Orders.  The 
ZEC would prepare for, conduct, and supervise elections and 
registration of voters. 
 
12. (U) Most participants in the hearing applauded 
consolidating electoral functions in one organization but 
raised other objections.  At the hearing, ZESN stated that, 
even with the welcome removal of the ESC, the ZEC was still 
flawed because not all electoral functions would devolve to 
the new ZEC as there would still be a separate Registrar 
General.  (Note:  The Registrar General has played a central 
role in ruling party manipulations of the political process 
during past elections.  End note)  Furthermore, a new ZEC 
should be independent and free of politics.  ZESN and the 
Center for Peace Initiatives in Africa offered alternative 
means of choosing members, with different combinations of 
Parliament, civil society, or foreigners participating in 
selection. 
 
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Civil Society Objects to Piecemeal Approach 
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13. (U) There have been strong calls from civil society for a 
new constitution dating before the GOZ,s failed 2000 
referendum on a new constitution, but most civil society 
leaders with whom we have talked agree that changing the 
constitution via a parliamentary bill is a flawed approach. 
The National Constitutional Assembly (NCA), which has been 
arguing for a new constitution since it was formed in 1997, 
published a statement before the March elections cautioning 
the government against imposing a new constitution through 
Parliament rather than holding a new referendum.  At the 
August 4 hearing, the Women in Politics Support Unit 
criticized the government for not consulting the public more. 
 Other groups such as ZESN and ZLHR said that the current 
constitution could not be fixed and an overhaul was needed. 
The NCA, which did not participate in the parliamentary 
hearing, continues publicly to call for an inclusive process 
to support a new constitution. 
 
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Comment 
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14. (C) Despite the objections of civil society, the GOZ is 
likely to push this bill through Parliament in something like 
its current form.  After the humiliating failure of the 2000 
referendum on a new constitution, Mugabe is not likely to 
countenance any kind of inclusive constitutional amendment 
process again.  However, given the experiences of the two 
electoral bills last year and the NGO bill this year, there 
may nonetheless be a vigorous debate in Parliament.  That 
debate will likely be fueled by arguments that undermining 
the security of titles could deal a further blow to the 
failing economy.  This argument may get the attention of 
ZANU-PF legislators, many of whom are also beneficiaries of 
allocated farms and may be concerned about the prospect of 
not holding title to them.  There is likely to be significant 
debate within ZANU-PF regarding the costs of this bill, but 
in the end ruling party MPs will likely toe the line and pass 
the bill. 
SCHULTZ