Everyone has duty in constitution-making

The Chronicle
11 June 2009
Political Editor

THE dust is beginning to settle following the fierce debate that erupted over the process of drafting the Constitution of Zimbabwe.

It should be borne in mind that Zimbabwe is using the Lancaster House Constitution of 1979, which was basically a negotiated political settlement that did not necessarily reflect the views and aspirations of the masses.

As a result, it is generally agreed that this was more of a transitional mechanism than a blueprint drafted by the people and it is therefore inadequate in meeting the needs of the general populace and generations to come.

The Lancaster House Constitution has consequently been amended a record 19 times.

If it were a pair of trousers, it would by now be threadbare with a lot of patches that would make it ugly and the person wearing it a subject of ridicule.

That is why in 1999, a process to draft a new “people-driven” constitution was initiated and spearheaded by commissioners appointed by President Mugabe in terms of the Commissions of Inquiries Act.

The Constitutional Commission headed by the then Judge President, Justice Godfrey Chidyausiku, carried out extensive consultations and produced a draft that was rejected by the people in a referendum held in 2000.

There were various arguments advanced for the rejection of the document. Some people said Zimbabweans used the referendum opportunity to send a wake-up call to the Government on the devastating effects of the neo-liberal economic policies prescribed by the Bretton Woods institutions, the International Monetary Fund and the World Bank, in the form of the Economic Structural Adjustment Programme.

In the words of the Constitutional Commission spokesman then, Professor Jonathan Moyo, the “NO” vote to the draft was a “tummy vote” and not in any way an expression on the contents of the blueprint itself.

Others argued that the document had been rejected because if enacted it would “produce an unworkable system of government with an unchecked executive, a weak Parliament, and inadequate protections for fundamental rights and freedoms”.

Subsequently, the National Constitutional Assembly — led by constitutional expert, Dr Lovemore Madhuku — which had vigorously campaigned for a new constitution and also took part in the lobby for the rejection of the Chidyausiku-led Constitutional Commission draft, produced its own version after a series of consultations in the country.

In September 2007, representatives of the then ruling Zanu-PF and the two MDC formations met at Lake Kariba and drafted a new constitutional proposal. The document, which derives its name from the location it was drafted and is therefore known as the Kariba Draft, was referenced in the Global Political Agreement, signed on 15 September 2008.

The agreement, which paved way for the formation of the inclusive Government, was signed by the three parties represented in Parliament, Zanu-PF and the two MDC formations.

Article Six of the GPA sets out a 19-month constitution-making process.

However, this new process evoked emotional debate when it was announced as civil society felt a Parliament-led process would not produce a people-driven constitution and there were also fears that the inclusive Government merely wanted to impose the Kariba Draft on the people.

Dr Madhuku went further to announce a boycott of the process and vowed to campaign against it especially in view of the alleged attempt to foist the Kariba Draft on the people.

The NCA produced a widely circulated position paper on the shortcomings of the Kariba Draft.

“The process that led to the creation of the Kariba Draft is inappropriate for two broad reasons: First and foremost, Zimbabweans must be given the right to determine the rules by which they would be governed. This view is reflected in the Zimbabwe People’s Charter, which calls for a ‘people- driven, participatory’ process of constitutional reform spearheaded by an inclusive all-stakeholders commission. The writing of the Kariba Draft by a handful of political elites without consulting the public is an undemocratic usurpation of the right of Zimbabweans to write a constitution for themselves,” reads the NCA position paper on the subject.

But the Minister of Constitutional and Parliamentary Affairs, Advocate Eric Matinenga, is on record as saying Zimbabweans would be free to express their view on the constitution they want.

“That (rubber stamping of the Kariba Draft) is simply not true. The people of Zimbabwe will determine what will be in their constitution. The Kariba Draft will not be forced down their throat but if they say they want the Kariba Draft so be it and if they say they want the National Constitutional Assembly Draft for instance so be it,” Adv Matinenga told Chronicle in April.

Article Six of the GPA spells out in detail the constitution- making process, including the timeframes for the various phases in the programme.

The preamble of the said article in the GPA emphasises the need for a people-driven constitution although it acknowledges the Kariba Draft.

“Determined to create conditions for our people to write a constitution for themselves; and mindful of the need to ensure that the new Constitution deepens our democratic values and principles and the protection of the equality of all citizens, particularly the enhancement of full citizenship and equality of women,” reads the preamble to Article Six.

The article also goes on to spell out the various structures that will move the constitution-making process.

It says the process will be steered by a Parliamentary Select Committee whose terms of reference will be “to set up sub-committees chaired by a Member of Parliament and composed of MPs and representatives of Civil Society as may be deemed necessary to assist the select committee in performing its mandate” and to “hold such public hearings and such consultations as it may deem necessary in the process of public consultation over the making of a new constitution for Zimbabwe”.

A 25-member Parliamentary select committee is already in place and is co-chaired by representatives from the three political parties represented in Parliament, Paul Munyaradzi Mangwana of Zanu-PF, Douglas Mwonzora of MDC-T and Senator David Coltart of the MDC led by Professor Arthur Mutambara.
The committee is also charged with convening an all- stakeholders conference to consult them on their representation in the sub-committees.

Addressing a seminar on constitution-making organised by the Zimbabwe Christian Alliance in Bulawayo yesterday, Adv Matinenga announced that consultations for the selection of people who will attend the All-stakeholders Conference set for 13 July would start on Wednesday next week.

The Minister said the stakeholder identification meetings on 17 June would be in Bulawayo, Gweru, Masvingo, Harare and Mutare while on 20 June similar meetings would be held in Matabeleland South, Matabeleland North, Mashonaland West, Mashonaland East and Mashonaland Central provinces.
“We anticipate that the sub-committees will equal every anticipated chapter in the constitution. Those issues including the sizes and composition of the sub-committees will be discussed at the All-stakeholders Conference,” said Adv Matinenga.

On the second phase of gathering the views for the drafting of the constitution, the GPA gives four months for that process.

“We envisage a situation where we use the 210 parliamentary constituencies giving them 30 days for meetings and we are also looking at the fact that each constituency has an average of eight wards which means three-and-a-half meetings per ward. If the issues have been properly explained and the people capacitated, I think three meetings per ward is enough,” says Adv Matinenga.

“As a ministry we will also do a pre-consultation process to simply articulate the policy of constitution making and maybe give the public documents such as the NCA Draft Constitution and the present Lancaster House Constitution for their own perusal.”

After the process of gathering the views for the constitution the parliamentary select committee shall table its draft constitution to a second All-stakeholders Conference. It would then report to Parliament on its recommendations over the content of the new Constitution for Zimbabwe and the draft Constitution recommended by the Select Committee shall be submitted to a referendum.

In terms of the timelines set by the GPA, the draft Constitution shall be tabled within three months of completion of the public consultation process to an All- stakeholders Conference and the draft Constitution and the accompanying report shall be tabled before Parliament within one month of the second All-stakeholders Conference.

It also says the draft Constitution and the accompanying report shall be debated in Parliament and the debate concluded within one month and the Constitution emerging from Parliament shall be gazetted before the holding of a referendum.

Although some civil bodies have reservations over this process, unlike the NCA, most have chosen to take part and make their arguments along the way.

Organisations like the Zimbabwe Christian Alliance and the Matabeleland Constitutional Reform Agenda do not see boycotting the constitution-making process as a solution and in fact have started awareness programmes on the programme as well as capturing possible input for the blueprint.

“Clearly, this process is a constitutionally mandated exercise and it is imperative that everyone, be it individuals, political organisations and civil society in general should participate in this process,” says the Zimbabwe Christian Alliance national director, Reverend Useni Sibanda.

Rev Sibanda says the ideal situation would have been to have a hybrid Constitutional Assembly comprising a select committee of Parliament, representatives of civil society and individuals recommended by a committee of Parliament and approved by a majority of parliament.

“That would have created a truly ‘people-driven process’. While ZCA appreciates that MP are the representatives of the people in Parliament, it believes that in a process as important and significant as constitution-making and reform, the actual ‘constituents’ must not be left out, especially at the level of the highest authority, that is the Select Committee,” says Rev Sibanda.

MACRA chairman, Mr Effie Ncube, is on record as saying while the process of making a constitution is important people should not lose sight of the content side of the whole exercise.

At the end of the day as aptly put by Adv Matinenga, “process and content in this case are intertwined”.

For now it would seem the constitution-making train is in motion and those who choose not to step on board like the NCA — which a political commentator attending the ZCA seminar in Bulawayo yesterday on the constitution described as being in a cul-de-sac — will be left for good.