The Herald
WHAT is motivating the wave of constitutionalism sweeping across Africa?
Who is behind it?
Is this pre-occupation with national constitutions a manifestation of growing consciousness within Africa, or another manifestation of external manipulation?
Where does the constitution stand in the resolution of Africa’s ongoing socio-economic and political challenges?
Isn’t Africa better off addressing pressing issues of the national question arising from the colonial legacy of dispossession, without undue encumbrance from so-called protection of the right to property that the Western sponsored documents inadvertently call for?
Which property rights always relate to ill-gotten colonial loot?
And why do Western donors see the need to pour resources towards constitutional drives especially in countries that make overtures to correct colonial inequities?
All these questions, like many others remain unanswered in the tragicomedies Westerners impose on our question mark-shaped continent.
It appears the constitutional debate was not an issue in Zimbabwe in the first decade of independence because the Lancaster House Constitutional Conference guaranteed white minority property rights for a whole decade.
When this decade elapsed and Government made serious moves to implement agrarian reforms particularly after 1995 (following the failure of talks with the British), the so-called National Constitutional Assembly (NCA) then led by Mr Morgan Tsvangirai was launched.
The NCA was launched on January 31, 1998; 86 days after former British Secretary of State Ms Claire Short wrote a letter to Harare absolving the British of their colonial obligations to sponsor land reforms in Zimbabwe as was agreed at the 1979 Lancaster House Constitutional Conference.
“I should make it clear that we do not accept that Britain has a special responsibility to meet costs of land purchase in Zimbabwe. We are a new government from diverse backgrounds without links to former colonial interests. My own origins are Irish and as you know we were colonised not colonisers, ” Ms Short wrote in part.
Suffice to say, there are striking similarities between the issues raised in Ms Short’s letter and the mission statement of the NCA, whose refrain in the run-up to the land donor conference of September 9-11 was protection of property rights.
Most of the pledges made by donors were however not honoured, and exactly 12 months later, Mr Tsvangirai transformed himself from constitutional advocacy to opposition politics with the launch of the MDC on 11 September 1999.
Again the party’s refrain was protection of property rights, to this end the party was heavily sponsored by white commercial farmers and foreign donors who thought it worthwhile to finance an opposition to unseat Zanu-PF than to finance a programme that would dispossess their kith and kin.
The stage was thus set for Zimbabwe’s constitutional debate.
In an effort to lay the groundwork for a successful agrarian reform programme, Government launched its own Constitutional Commission (CC).
The commission held plenary sessions throughout the country and came up with a draft that had radical land reform clauses calling for compulsory acquisition of white-held farms without compensation.
The then Constitutional Commission chairman Justice Godfrey Chidyausiku presented the draft to President Mugabe on November 30 1999 and a process to organise a referendum for its adoption was immediately launched.
Various stakeholders hailed the draft constitution.
In a report released on February 2 2000, just 12 days before the referendum Amnesty International, an anti-government lobby hailed the document saying:
“Amnesty International concludes that the draft constitution represents major human rights improvements compared to the present constitution, particularly with regards to women’s rights.”
But opposition groups among them the NCA-MDC-ZCTU triumvirate launched campaigns against the draft constitution by misrepresenting to the people that it sought to entrench President Mugabe’s rule by giving him unlimited powers.
Yet, it was evident that what they opposed was Section 57 that said in the assessment of any compensation that may be payable when agricultural land is acquired for resettlement it should always be borne in mind that people of Zimbabwe were unjustly dispossessed, took up arms to reclaim the land, that Britain reneged on its promise and that Zimbabweans are entitled to their land.
Hence the only compensation was to be for improvements done on the farms.
This section saw opposition groups launch spirited campaigns for the rejection of the draft, their wishes were granted in the February referendum where the No Vote narrowly prevailed.
However, the hypocrisy of these opposition groups was revealed when they began demanding electoral reforms that had been enshrined in the draft constitution.
In the run-up to the June 2000 elections, the MDC called for the scrapping of the 30 non-constituency seats, establishment of an independent electoral commission, abolishment of the four bodies that ran elections among other things, suffice to say all these issues had been covered by the Constitutional Commission’s draft.
Even though the land reform programme is now irreversible, the NCA continues with muted calls for a new constitution launching street protests every three months, a development analysts say may point to the fact that donor funds reach the organisation quarterly.
The Constitutional debate in Zimbabwe peaked again during debate on the Constitution of Zimbabwe Amendment (No.17) Bill that brought finality to the agrarian reform programme.
The Bill, now an Act, amended the national constitution in three main areas, the most radical being the question of land reform.
It introduced a new Section 16B that confirms the acquisition of land for resettlement purposes pursuant to the land reform programme that began in 2000 and provides for the compulsory acquisition, in the future, of agricultural land for resettlement and other purposes.
This Amendment enabled Government to remove legal bottlenecks that arose in the implementation of the land reform programme as former white commercial farmers were delaying the process by appealing to the courts.
Under the Act, Zimbabwean courts would be barred from hearing appeals on land acquisition with aggrieved persons restricted to seeking recourse in the courts only for the purpose of determining any questions related to compensation for improvements on acquired farms.
It is important to note that Mr Tsvangirai, who all along was quiet about the constitution, suddenly remembered his constitutional advocacy cap.
Though his party opposed Amendment (No.17) Act, the provisions of the Act and the MDC draft constitution presented by secretary for legal affairs David Coltart, clearly showed that the two documents differed only on the question of land, but concurred on the other six amendments.
This section, which finalises the land reform programme, defeats the reason the MDC was formed, which was to scupper the land reform programme by unseating the incumbent Government.
It also flies in the face of the so-called Zimbabwe Democracy and Economic Recovery Act, the sanctions law drafted by the US Congress in concert with the MDC.
This comical legislation says the illegal sanctions can only be lifted after land tenure is restored to pre-2000 levels, or to put it bluntly, when agrarian reforms have been reversed.
Elsewhere in Africa, constitutional fever has also gripped Kenya, where the Maasai are demanding return of their ancestral land.
The Constitution of Kenya Review Commission released its draft on August 23 amid opposition from “civil” society groups and opposition parties that claim that the document gives incumbent President Mwai Kibaki far reaching presidential powers.
Other critics, campaigning for a No Vote, claim the document fails to separate between state and religion, nothing is being said about land reform being demanded by the people.
The Kenyan proposal is a combination of a draft by a National Constitutional Conference in March 2004 and the one proposed by parliament in July this year. A referendum on the constitution is expected later this month, with enactment set for December 12 if the Yes Vote prevails.
The constitutional debate has also gripped Zambia with debate on the powers of the president taking centre stage.
The Zambian government has proposed that the draft constitution be redone because it rejected the Constitution Review Commission (CRC) recommendation that the Republican President be elected by a 50 percent plus one vote.
Opponents say the 50-plus one system is problematic and could lead to a constitutional crisis and would be very costly in case of a poll re-run.
They say the system defeats the essence of universal suffrage as it suggests that the national assembly could elect a president in the event of a stalemate.
The debate has also centred on transitional, swearing in and hand over periods and of course the draft has stringent criteria guaranteeing the right to property.
The campaign for a new constitution came as Zambian opposition leader; Michael Sata’s radical campaign for land reforms in Zambia gathered momentum.
The examples are too numerous to mention.
It is not contestable that property rights should be guaranteed for they are a pre-requisite for investor confidence.
The concept, however, becomes problematic if it is used as a smokescreen to frustrate Africa’s second wave of decolonisation that focuses on redistributing ill-gotten colonial property for the benefit of the majority.