Sunday Mail Reporter
The fate of the Copac draft constitu­tion hangs in the balance after it emerged that MDC-T secretary-gen­eral Mr Tendai Biti allegedly penned the August 30 letter that Prime Minis­ter Morgan Tsvangirai sent to Presi­dent Mugabe purporting to respond to amendments made by Zanu-PF to the July 18 Copac draft constitution.

It has emerged that Mr Biti came up with the idea in a bid to prevent Mr Tsvangirai from playing any negotiat­ing role in the finalisation of the draft, apparently because the secretary-gen­eral and his faction believe the MDC-T leader has no capacity to negotiate with President Mugabe.

The Sunday Mail has learnt from authoritative sources within the MDC-T that Mr Biti’s contempt of Tsvangirai’s negotiating capacity and his commitment to fellow GPA nego­tiators to defend the July 18 Copac draft “by all means necessary” prompted the ambitious Finance Min­ister to “convince” Mr Tsvangirai into writing a patently false letter whose unintended but damaging con­sequence has been to misinform and mislead Presidents Jacob Zuma and Jakaya Kikwete, who were copied the letter, into thinking that GPA principals and their parties have no role in the draft ostensibly because it is a parliamentary process when the opposite is the factual and legal position.

The well-placed MDC-T sources with close links within the Sadc diplomatic community in Harare, who spoke to The Sunday Mail yes­terday on condition of anonymity, said that some influential members of Tsvangirai’s so-called “kitchen cabinet”, which is believed to be co-ordinated by Ian Makone through the Prime Minister’s office, have been riled by the blatantly false and misleading contents of the letter drafted by Mr Biti in his capacity as both party secretary-general and chief GPA negotia­tor. Mr Biti is also a lawyer by profession.

According to these sources, the real purpose of Mr Tsvangirai’s letter to President Mugabe written by Mr Biti and copied to Presidents Zuma and Kikwete is not to declare any dead­lock at all — and they say the letter does not in fact do that as claimed in the media — but to remove the MDC-T leader from having any­thing to do with the writing of the draft con­stitution.
It is alleged that Mr Biti does not trust Mr Tsvangirai’s negotiation skills and capacity and “fears that Tsvangirai will either sell out or be  out-manoeuvred by President Mugabe as hap­pened during negotiations for the GPA itself”.

It is understood that to achieve his objective of keeping Mr Tsvangirai out of any direct involvement in the Copac draft, Mr Biti decided on the advice of the Copac donors co-ordinated by the UNDP whose behind-the- scenes role has been controversial to create the false impression that “the constitution-making process in general and the July 18 Copac draft in particular are parliamentary processes which the GPA principals must not interfere with”.

During several interviews yesterday, this newspaper established that Mr Biti’s claim that the Copac draft is a parliamentary process which must not be touched by GPA principals and their political parties is not only false but also new and is in fact the reason why the letter was copied to Presidents Zuma and Kikwete in a desperate but ill-fated attempt to get them to support a falsehood with the very high risk of embarrassing themselves down the line.

MDC-T spokesperson Mr Douglas Mwon­zora, who has been hyping up Mr Tsvangirai’s let­ter in the media over the past week and who is thought to belong to Mr Biti’s faction, con­firmed its contents yesterday in a telephone interview.

Echoing a line that has become Mr Biti’s default script since the draft was released on July 18 by Copac’s management committee made up of GPA negotiators, Mr Mwonzora said Mr Tsvangirai’s letter makes it clear that “Zanu-PF amendments are not acceptable and GPA principals cannot inter­fere with the writ­ing of the draft at this stage” because it is Par­liament which will enact the law, without explaining why Copac moved out of Parlia­ment in October 2009.

“The Constitution is a law just like any other law. So it is a parliamentary process and not an Executive one”, thundered Mwonzora. 
In a very clear anti-Tsvangirai and pro-Biti factional statement that let the cat out of the bag, Mr Mwonzora boldly and triumphantly declared that, “There’s nowhere in the GPA where it is provided that the President and Prime Minister are to negotiate the Constitu­tion”.

Mr Mwonzora also claimed that “after the Copac management committee resolved the issues it sent the draft constitution to Copac. 
“The full Copac chaired by Mr Paul Mang­wana of Zanu-PF met and endorsed the docu­ment”. But Copac minutes of that meeting which are in the possession of The Sunday Mail clearly show that the said meeting was hur­riedly held on July 19, a day after the draft was finalised by the Copac management commit­tee which had unprocedurally transformed itself into a drafting committee yet its man­date was to supervise the process in place of Parlia­ment. On that day the full Copac was steam­rolled into endorsing a draft which Copac itself had not crafted and which its members had not read.  The minutes also show that Zanu-PF members who raised concerns about endors­ing a draft they had not read and who wanted to know if amendments could still be made should that be found necessary were assured that the draft would remain open for improve­ment by GPA principals and their political par­ties before being submitted to the Second All Stakeholders’ conference. This conclu­sively proves that the media outcry by the MDC for­mations against Zanu-PF amend­ments that have improved that draft is not sup­ported by the Copac minutes of July 19.

Asked to confirm whether Copac was factu­ally or officially a parliamentary process as claimed by Mwonzora in support of Tsvangi­rai’s August 30 letter crafted by Mr Biti, the Clerk of Parliament Mr Austin Zvoma said the constitution-making process is not a parlia­mentary process because Copac is not man­aged by Parliament and Copac business is not listed on the Order Papers at both the Sen­ate and the House of Assembly as would happen if the process was under Parliament.

“The constitution-making process is not a parliamentary process at all. For it to be a par­liamentary process, its structure and composi­tion should be 100 percent parliamentary in nature. In Parliament we have portfolio com­mittees and thematic committees that regularly report to Parliament during the course of their work and at the end of their work.
“The management and mandate of Copac did not allow it to operate like these commit­tees so the con­stitution-making process cannot be said to be a parliamentary process.

“Copac was not being managed within Par­liament, its resources were not drawn from Parliament and its business was not reflecting on the Order Paper both at Senate and at the House of Assembly. The Copac select commit­tee was withdrawn from Parliament and its oper­ations have remained outside Parliament.
“We don’t even know what equipment they have, we don’t know anything about their expenses and we don’t even know what they have. How then can someone say this is a par­liamentary process?

“The management committee of Copac which came up with the Copac Draft Constitu­tion on July 18 was set up by the GPA Princi­pals and not by Parliament. If Copac was a par­liamentary process, the principals would not have appointed the members of the manage­ment committee. They would have only made recommendations to Parliament if Copac was a parliamentary process,” said Mr Zvoma.
The factual position outlined by Mr Zvoma is confirmed by item 8.0 of the minutes of the sixth meeting of Parliament’s Committee on Standing Rules and Orders (CSRO) of 14 October 2009 which noted that

“. . . the (GPA) principals had written a letter to the Presiding Officers of Parliament outlining the new man­agement structure for the Select Committee (Copac) outside of Parliament”.
Investigations by The Sunday Mail revealed that this factual position outlined by the Clerk of Parliament yesterday and confirmed by the October 14, 2009 minutes of Parliament’s CSRO was also recognised in the High Court of Zimbabwe on April 11, 2011 in case Num­ber HC 3501 involving Maxwell Zimuto and 19 Others Vs Minister of Constitutional and Parliamentary Affairs who had cited Parlia­ment as a second respondent after they were expelled from Copac on allegations that they supported Professor Arthur Mutambara and thus did not belong to the MDC formation led by Prof Welshman Ncube.

Parliament made the following important submission to Mbidzo, Muchadehama and Makoni Legal Practitioners representing the applicants which was accepted by the court, “We would like to put it on record that Parlia­ment of Zimbabwe was wrongly cited.

“Accord­ing to your papers, the third respon­dent, Priscilla Misihairabwi-Mushonga, wrote a letter requesting Copac to relieve the appli­cants from their constitution-making duties. 
“The co-chairpersons of Copac then made a decision to implement the third respondent’s request and expelled the applicants. All this was done without the involvement of Parlia­ment. The first applicant’s affidavit avers to the fact that Parliament of Zimbabwe has been cited in its official capacity as ‘the one responsi­ble for creating Copac’. With due respect, we are unable to agree with you on this averment.

“Article 6 of the Interparty Political Agree­ment of September 15, 2011 created Copac in the following terms: ‘the Parties hereby agree that they shall set up a Select Committee of Parlia­ment composed of representatives of the Parties whose terms of reference shall be as fol­lows . . .’
“Therefore, Copac is not a Committee of Parliament, but a Committee composed of Members of Parliament and representatives of Civil Society created in terms of IPA just like the Joint Monitoring and Implementation Committee (Jomic) created by Article 22.

“Nei­ther the Constitution nor the Standing Orders provide for these structures. Copac has its own secretariat, premises and procedures com­pletely delinked from Parliament. You would also appreciate that even the National Budget provides for totally different votes for Copac and Parliament of Zimbabwe.

“Unlike Copac, Committees of Parliament are created in terms of House of Assembly Orders 154 to 158.  In terms of the said Stand­ing Orders, a Committee of Parliament, be it permanent or ad hoc, is created by the Stand­ing Rules and Orders Committee, which shall ‘frame rules relating to the conduct of business in committees’ or give the Committee the terms of reference.  As you are aware, this does not apply to Copac, which is a clear indication that Copac is not a Committee of Parliament”.

Observers and legal experts familiar with this background and Mr Tsvangirai’s August 30 letter drafted by Mr Biti said there can be no doubt on factual and legal grounds that as an expression of the GPA, Copac is neither a par­liamentary nor a legally man­dated process but is entirely a political process necessarily con­trolled and directed by the GPA principals and their political parties.
Top Harare lawyer Mr Terrence Hussein described Article VI of the GPA under which Copac was established as a political thing and highlighted that only Article XX of the GPA is part of the country’s law relating to the compo­sition of the current Government as Sched­ule 8 of the Constitution which will lapse at the end of the GPA Government.

“The GPA is a political thing. However, it’s worth noting that Article XX is part of the law and is a solid legal foundation of the compo­sition of the current Government,” he said.
Another prominent lawyer Mr Jonathan Samkange concurred with Mr Hussein. Speak­ing from his Namibian offices Mr Samkange recalled that the GPA came about after political negotiations between Zanu-PF and the two MDC formations with only Article XX being incorporated into the country’s Constitution.

“Only Article XX is part of the law. Every­thing else about the GPA, including Copac, is polit­ical,” said Mr Samkange. A senior Zanu-PF politburo member told The Sunday Mail yesterday that on the basis of what has been reported in the media Tsvan­girai’s August 30 letter crafted by Mr Biti was not worth com­menting on or responding to because it is not worth the paper it is written on.
“It is hard to imagine that Tsvangirai himself either read the letter he sent to President Mugabe or that if he sent it he actually under­stands its nonsensical contents because if he does, then he is very suicidal, given that what has been reported about that letter implies that Tsvangirai has no capacity to negotiate with his fellow GPA principals and now wants to hide under the finger of a parlia­mentary process that never was. Somebody should tell Tsvangirai to show some leadership by standing up to his manipu­lative secretary-general and engage his fellow GPA principals and move the draft constitu­tion incorporating Zanu-PF amendments or just get lost”.