Letter from Ben Freeth to David Coltart and Eddie Cross – 25th July 2012
I accept that you don’t like public letters but I think, for those that are brave enough to stand for public office, they need to be brave enough to accept that there must be public criticism. Without public accountability, transparency and openness, democracy can not work.
David, you and other Christians and the rest of our democrats are about to agree to a constitution that has draconian measures in it – a constitution that goes directly against the law of God as drawn up in the 8th commandment and says implicitly that: “thou can steal” – and nobody has the right to go to court about the stealing that takes place. Further to that it explicitly says that discrimination is permissible in the stealing process – “the acquisition may not be challenged on the grounds it was discriminatory.”
This is a matter of principle and I am afraid that if we do not question it and those agreeing to it we are not being true to what we believe. If those agreeing to it are prepared to compromise on principle so far, what principles are they going to compromise on next? Eddie, you call this new constitution a “ferry” – and you say you are happy with the rights that the new constitution gives. I am outraged!
What was wrong with the Lancaster house constitution in allowing free and fair elections? We are all aware that we have a party in power that disregards laws and constitutions. Were pungwes constitutional before? Of course not! Was the burning of houses – sometimes with people inside them – constitutional before? Of course not! Was the rape of women and the mutilation of your supporters constitutional before? By no means! So how is any new constitution going to protect people from lawless and savage acts? How is the constitution going to be the ferry that gets the police out to do their job in protecting life and property?
No, the constitution is not the ferry. It is a red herring in the waters.
All along the problem has been “protecting the people.” Would you David, or you Eddie – or Morgan or Welshman – or anyone else – be prepared to go out to the all night pungwes before the election to protect people? Has anyone in the past? Of course not! God knows how we tried to get people out to them! No, it was too dangerous.
So why are those in public office rather not putting together dossiers and films about the atrocities at the pungwes, so that Morgan, Welshman, the churches, the civics, and anyone else who cares about the protection of the people of Zimbabwe, hold hands and, ahead of the next election, go out on an all out international campaign to SADC, the AU, the EU, the Sates and the UN to call for peace keepers and the protection of the people? There is enough evidence of the crimes against humanity that take place before every election. There are pictures and medical reports and horror stories in their thousands. If the Christians and the democrats were to hold hands and unite in this call, and the Prime Minister and the Deputy Prime Minister were calling for it with a united voice, it would carry much more weight than an opposition leader calling for it - as has been the case in the past.
But no. There is this sham idea that MDC can out negotiate ZANU! There is this feeling that ZANU will negotiate itself out of power! It is utter naivety and nonsense. No! ZANU is regrouping. ZANU was on the ropes but it is now becoming financially secure. It is buying cars. It is training militia. It is stopping prosecutions of the perpetrators of the “last round.” It is arresting anyone who is a threat. It has prevented MDC from even visiting the police stations and carrying out any reform amongst those that allow the terror. ZANU is getting ready. It knows what works. It has used it time and time again. Fear has to be inculcated. Fear levels continue to run very high.
How is calling for the lifting of targeted sanctions and sanitizing all that has happened going to stop ZANU from employing its tried and tested formula? It works! It has worked time and time again! This policy of appeasement is horrifying. “Everything is OK in Zimbabwe now!” I weep as I write this! Who are we trying to fool? Why are we hiding the truth! Why, after 4 years of you being in public office is there not an open all out bid being made to get the people protected ahead of the next election?
In tears of concern of what is to come,
David Coltart replies to Ben Freeth
Thank you for your letter which I acknowledge is written from the heart. I need to assure you that I fully accept that those who seek public office must be held accountable in public for policy decisions they make, or policy positions they adopt.
I do not like many aspects of this proposed new Constitution. Even worse than the land provisions is the implicit failure of the Constitution to recognise the truth of Romans 3:10-12 - namely that all have "turned away" from God, the truth summed up by Lord Acton that "power tends to corrupt and absolute power corrupts absolutely". The US Constitution recognised that man cannot be trusted with unfettered power and that is why there are so many checks and balances worked in to that Constitution. This new constitution is slightly better than the old in this regard but still makes the fundamental error of thinking that men can be trusted with power. That failure in my view is the most serious departure from biblical principles, in that far too much power is still vested in the executive.
There are other serious problems with it - one, for example, is that the new constitution perpetuates Zanu's profligacy - seen in the size of the new Parliament, the number of provinces, the absence of any limit to the size of Cabinet etc.
So let me say as publicly and directly as I can that I share your concerns regarding the land provisions and that I have many other deep rooted concerns. I think the land provisions are going to stifle investment in this all important area of our economy. I think they are racially discriminatory and some of these provisions should never be in any modern democratic constitution. One would expect to find them in an apartheid era constitution because they are so blatantly based on race.
The problem we have is that this has been the product of exceptionally difficult negotiations with a political party which has elements in it who are not interested in the process and who have enormous raw power and financial muscle. One only has to see the fury in the last few days being expressed by the likes of Jonathan Moyo and company - and the clashes between him and Paul Mangwana, to see that there are elements within Zanu who loathe the constitution as much as you do, and would if they had their way, tear it up and the entire process. They have been looking for any excuse to derail the process and this has given them disproportionate negotiating power. And they will continue to look for excuses to derail the process. In this regard the major danger which lies head is that if we all start to pick and choose elements of the constitution which we do not like, the hardliners in Zanu will do the same with the intention of subverting the entire process.
The reason for the hardliners' desire to derail the process is simple - because they recognise that ultimately this constitution is going to lead to more accountability, more democracy and consequently their loss of power. So as bad as all these provisions are on balance the Constitution is better than what we have at present and will take us forward.
One aspect of your letter I think is fundamentally wrong - and that is your assumption that there is something called Zanu left, that is a homogenous, united, single minded political party. The divisions within Zanu are not fake - they are growing daily and are very apparent in Cabinet, in the dissolution of their DCCs, in the very public spat between Mangwana and the hardliners, in the refusal by Midlands Province to recognise the dissolution of the DCCs and in the mystery which surrounds the death of General Mujuru. These are hard facts - not wishful thinking or speculation. So yes elements are regrouping - vehicles are being bought, there is undoubtedly an electoral war chest being developed by the hardliners. But they are completely divided regarding how they should wage this battle.
If we were to pull out of this process now mark my words the people who would rejoice the most would be the Jonathan Moyos of Zimbabwe because that is precisely what they want us to do. No one with his head screwed on is saying that everything is okay in Zimbabwe now - I certainly have not. In fact in recent interviews I have said that we are at a very fragile juncture and there is the ever present danger that the hardliners will get their evil way. I have no doubt that what you say about the hardliners preparing to use their tried and tested formula again is correct. The question is what can we do practically to lessen their ability to do so? In my mind the only way is to see this process through, flawed as it is. Because this way we ensure that we keep the region (without which we are powerless) on our side. For so long as Africa does not support the hardliners they will hesitate in carrying out everything they want to do.
This is not a policy of appeasement, nor is it born of fear. There is certainly no attempt to hide the truth - all of us in both MDCs have born the brunt of Zanu hostilities, some of us for decades, and so have no personal desire to see justice discarded. All of us support the work of human rights groups and the media in their role of recording, documenting and exposing human rights abuses. But that is the rightful role they have to play and it is not the primary role of politicians to do that work. Our role is to ensure that we create laws that will protect people; that is why there are strong provisions in both the Constitution and the new electoral bill to create a much better electoral environment - so there is an all out bid to protect people.
Whilst I understand your distress and share your objection to a variety of clauses in the constitution I believe that we have no choice but to take this step. I do not believe that this is a red herring. I do not think that the constitution is the only means to cross the river, but it is certainly a very important element in getting us to the other side. I also recognise that, to continue the analogy, the ferry is full of leaks and that many would like it to sink - and of course that it may yet sink.
The problem is that we just do not have any other options and must make the best of it. And this really is the crux of the matter - if we were to reject this what then? What are the practical alternatives? We have tried documenting Zanu's atrocities - I initiated and sustained the writing of Breaking the Silence in the 1990s (there is no more comprehensive human rights report yet done in the country) and it did not work. We have tried mass action in 2003 and it did not work. We have tried isolation during the last 12 years but it did not work. Other than violence, which is complete anathema, and which in any event will play right into the hands of the hardliners' agenda, I do not see any other viable option. If you can spell out a practical alternative I am open to it - I will listen but I have not heard anyone with a viable, non violent plan.
What is David Coltart saying? (Dale Doré)
In his reply to Ben Freeth’s letter, David Coltart said that the land provisions are “racially discriminatory and should never be in any modern democratic constitution.” He also said that even worse than these land provisions was that “far too much power is still vested in the executive.” In other words, the constitution abrogates fundamental human rights and does not contain the necessary checks and balances to constrain Presidential powers. Yet, Coltart argues that we cannot “pick and choose” which elements we like, and urges us to accept the constitution in its entirety or risk subverting the whole process. His argument is baseless on a number of counts.
The first is that human rights and the separation of powers, amongst others, are not minor elements but the core pillars upon which a democratic constitution stands or falls. Remove one of those pillars and the whole edifice of the constitution crumbles. Equally worrying, is that the constitution specifically contradicts the rulings of the SADC Tribunal which were based on international customary law and the Vienna Convention on the Law of Treaties. As ZANU(PF) systematically discredited and dismantled the Tribunal, the MDC did nothing but maintain a shameful silence. Now Coltart is asking the people to do that same: turn a blind eye to grievous flaws inserted into the constitution at the behest of those who militate against the Tribunal and international law.
The second argument Coltart uses is that if we do not accept this deeply flawed document we will play into the hands of ZANU(PF) hardliners. But, hold on a minute ... are the people of Zimbabwe being asked to judge the draft constitution on its own merits or to make a political decision? Is Coltart asking us to blindly accept the founding law by which we are to be governed, and to vote along party lines for a document conceived through an elite political pact? Just because Jonathan Moyo is rejecting it for political reasons, do the people of Zimbabwe also have to accept it for political reasons? But there is more. By my reading of the constitution, the MDC has already played into the hands of the hardliners by capitulating on human rights, executive powers, and the question of justice.
The third argument on which Coltart can be challenged is his notion that the draft constitution will lead to more accountability, more democracy, and the loss of power by hardliners. This is an odd claim given that, by Coltart’s own admission, the new constitution makes “the fundamental error of thinking that men can be trusted with power.” Indeed, it is possible that such unconscionable executive powers could remain in the hands on Robert Mugabe or his successor. If so, this is hardly likely to lead to a loss of power by hardliners. But even this misses a central point. The constitution (whether it is the new or old) and the rule of law are irrelevant to hardliners. If Robert Mugabe blatantly disregarded the last constitution, why should he abide by the new one? By what constitutional authority, for example, does the President instruct the police to defy court orders and ignore their constitutional duty to protect the people from atrocities committed by his party supporters? The truth of the matter is that they subverted the old constitution and then inserted the offending clauses in the new draft constitution. Is this what Coltart’s is trying to sell us as “an all out bid to protect people”?
The fourth argument Coltart advances is his now infamous line that “we just do not have any other options.” This is his ‘killer quote’ to convince any doubters that unless we, like the MDC, compromise with a regime that has brought nothing but poverty, humiliation and misery – and which created a Diaspora that has conveniently been denied the vote – matters will only get worse. The MDC won elections and ceded power because ‘they had no other option’; they legitimised the seizure of farms based on race because ‘they had no other option’. When Mugabe refused on budge on any GPA reforms, they joined him by calling for the removal of sanctions because ‘they had no other option’. Although the MDC has given in on almost every major political decision, including principles of natural justice, Coltart denies the charge of appeasement. Instead, he claims there is no non-violent “practical alternative”. Perhaps this is because he mistakes non-violence for pacifism and collusion rather than as a mode of struggle and resistance against tyranny.
But now, we the people do have an option to decide upon whether or not to adopt the draft constitution. We must deliberate and discuss the merits and flaws of the draft constitution rigorously and openly. We must decide whether any president should be trusted with such sweeping constitutional powers. If necessary, we should sink this rickety and leaky ferry and start afresh with a sturdy and seaworthy vessel of state that can confidently withstand the constitutional gales and storms that lie ahead. But, above all, we must not be blackmailed into accepting the unacceptable.
Harare, 28 July 2012