Zimbabweans Yearn for a Democratic Constitution

May 28, 2007.

ZIMBABWEANS YEARN FOR A DEMOCRATIC CONSTITUTION

The vexing debate about a home-grown constitution for Zimbabwe is both controversial and timely. It is controversial in the sense that the ruling ZANU (PF) party is adamant that it has the "right" to write a new basic law for Zimbabwe and no one has a right to make an input. It is timely for quite a number of reasons, among which is the yearning for a democratic constitution. The Lancaster House Constitution, having been a transitional document, has been defaced seventeen times. Then there is the need for a strong opposition to counter and block unpopular legislation in the House of Assembly.

The fact that Zimbabwe did not have an effective opposition in parliament was in part a result of changes made to the Lancaster House Constitution, fashioned to serve the one-party state ambitions of the ruling ZANU (PF) party. The House of Assembly finds itself in a situation where it can change the constitution without an effective opposition in parliament. Therefore, the country cannot have an effective opposition in Parliament unless it amends or repeals those aspects of the constitution and those offending pieces of legislation which stand in the way of a truly democratic disposition.

There is growing national consensus, even among members of the ruling ZANU (PF) itself, on the need to overhaul Zimbabwe's constitution. Back in May 1997, a forum of various interest groups was set up. The National Constitutional Assembly (NCA), created by various civic society groups involving the labour movement, human rights associations, lawyers' associations, the student movement, women's organisations and other civic groups was designed to mobilise the general public towards changing the country's constitution. The forum was established to serve as the launching pad for nation-wide activities that would culminate in a national constitutional convention that would draft a new constitution for Zimbabwe. The current Lancaster House Constitution is perceived by many Zimbabweans as foreign and irrelevant to the realities of the nation today.

Although the Government has over the years spurned calls by opposition parties and civic groups for a national constitutional conference, the heated ZANU (PF) annual national conference held in Mutare in December 1997 adopted a resolution calling for constitutional changes. In addition, the ZANU (PF)-dominated Parliamentary Reform Committee, which in January 1998 completed a tour of the country's provinces, issued its report in May 1998. The committee set out in remarkable detail precisely what needed to be done to transform Zimbabwe's legislature from a mere instrument of the ruling party into the public watchdog it was supposed to be. The report's conclusions were derived from extensive consultation with grassroots opinion at home and expert opinion abroad. Besides visiting 28 centres in nine provinces, the committee studied the workings of parliaments in Britain, Australia, New Zealand, South Africa, Namibia, Uganda and Germany. Together with evidence from civil society stakeholders, who had well-considered positions on the role of Parliament, the consultation exercise gave the report a clear ring of authenticity and credibility.

The committee encountered strong concerns throughout Zimbabwean society about corruption, financial waste and mismanagement. "Unless clear steps are taken to address such concerns," the report warned, "there is a danger of increasing disillusionment with the political process which will pose a threat to stability." The report looked beyond Parliament itself to the wider issue of constitutional reform. Recommending the setting up of a constitutional committee, the report said, "A parliamentary constitutional committee should be established to safeguard the observance and promote the progressive development of the constitution on an on-going basis, scrutinise constitutional Bills and generally serve as a democratic forum on constitutional issues to all citizens irrespective of their political persuasions."

The authority of the Parliamentary Reform Committee (if not Parliament itself) was so limited it could not force the President to accede to its recommendations. Instead of heeding calls from Parliament, President Robert Mugabe chose to work with his party on an internal programme to thwart measures that would curb his sweeping powers. On 20 May 1998, the ruling party's supreme decision-making organ, the Politburo, which is chaired by President Mugabe himself, was understood to have discussed recommendations drafted by the party's legal affairs supremo, the late comrade Edison Zvobgo, on how the party could chart the way forward on constitutional reforms. Party sources revealed that the Politburo agreed to start the process of reforming the Constitution.

It is interesting to note that already in February 1998 members of Parliament proposed the setting up of a mechanism to review the 1980 British-crafted constitution. They pointed out that the review must focus on presidential powers and terms of office. Parliamentarians expressed the fact that in the fourteen amendments already made to the constitution, the rights of the people were taken away and given to the executive. The deputies said that it made no sense to claim that "Parliament had powers to pass a vote of no confidence in the President" when at the same time the "President himself could dissolve Parliament" whenever he wished.

Civic groups, stakeholders and political parties also feel that the seventeen amendments to the 1980 Constitution made by the ZANU (PF)-dominated Parliament since independence gave President Mugabe too much power, pointing out that the Constitution was amended to suit ZANU (PF)'s ideals of a one-party state. When one scrutinises some of the clauses, one discovers that the constitutional amendments made the President higher than the law itself. For example, paragraph 31 (k) of Chapter Four of the Constitution states, inter a'lia, "Where the President is required or permitted by this Constitution or any other law to act on his own deliberate judgement, a court shall not, in any case, inquire into any of the following matters:

whether any advice or recommendation was tendered to the President or acted on by him; or
whether any consultation took place in connection with the performance of the act; or
the nature of any advice or recommendation tendered to the President; or
the manner in which the President has exercised his discretion."

It is no wonder that convicted criminals who are ruling party members have been given presidential pardon and why, in many cases, there is political interference with the judiciary.

In all but one of the constitutional amendments, the general public was never consulted. The process involved a decision being made by the ZANU (PF) Politburo, then adopted by the Cabinet and rubber-stamped by Parliament. Some have also argued that the number of times that the Constitution has been amended bore testimony to its fragility, particularly when some countries like Australia have only changed their constitution about five times in about one hundred years. Developments in neighbouring countries like Namibia and South Africa, which consulted widely and came up with their own constitutions have put more pressure to change the Zimbabwean Constitution.

Even President Robert Mugabe, who initially took a swipe at some legislators who he accused of jumping the gun by pushing for constitutional reforms outside the party system, was agreed there should be extensive constitutional consultation and that the process should be expedited. Opening the fourth session of the fourth Parliament on the 14 July 1998, the President said that it was now glaring that the constitution did not augur well for the needs and aspirations of the majority of Zimbabweans.

"I do hope, therefore, that the House will be able during this session to begin in earnest to debate this matter thoroughly so that the final agreed constitution will truly reflect the wishes of our people.... This exercise should ensure that the debate genuinely takes on board the values and aspirations of the generality of our people," he said.

It is interesting to note that while President Mugabe had previously insisted that ZANU (PF) should take the lead in preparing the draft constitution, he now spoke of the importance of involving everyone in the reform debate and parliamentarians were now seeking to entrench popular participation in the constitutional review process.

Following the president's speech to Parliament, the Zimbabwean legislators moved a motion calling for the setting up of an independent constitutional commission. It was expected to hold extensive nation-wide consultations and preparing a draft constitution. The parliamentarians wanted the commission to be headed by an independent retired judge and to be composed of legal experts, insisting that every political party, including the ruling ZANU (PF) party, should be involved in the review process by way of invitation as a stakeholder only. One MP said, "The process we are embarking on is not to draw up a ZANU (PF) constitution, but a national one which transcends political affiliation. We want to have a constitution which will reflect and address the needs of the people, even after the reign of ZANU (PF)." The MPs further insisted that in their proposal they did not want the exercise to be spearheaded by senior members of the ruling party, but that these (like all other stakeholders outside ZANU (PF) make their input to the constitutional commission.

Ironically, the stance adopted by the legislators dovetailed with the process proposed by the NCA. In its resolutions during their session of 11-12 July 1998, the NCA said that it was the duty of the incumbent government to facilitate a constitution-making process without seeking to control and dominate the exercise. "Government of the day formulates and implements policies and laws, but the formulation of a constitution, the basic law of the land, and even its amendment, is exclusive preserve of the sovereignty of the people.... No single political party, however dominant, has the right to make a constitution for the people, and no group or segment of society, however small or weak, should be left out or marginalised in the constitution-making process," the NCA said.

The Parliamentary reform programme gave hope that all was not yet lost and that the time would come when this pivotal national institution would take its rightful place as a chamber for people's representatives and not executive tools. Parliament was the only institution in the land that could make laws in a comprehensive manner as compared to the prevailing piecemeal changes that resulted from judicial determinations. Judges made laws on the hoof whenever they interpreted laws but it was high time that a comprehensive exercise was embarked on. Apart from stopping bad laws from being enacted, it was hoped that a reformed Parliament would be receptive to public petitions to expunge existing bad laws from the country's statutes.

It turned out that there were three stakeholders competing for the right to write the constitution: there was the ZANU (PF) government which claimed that it must "lead the campaign to review the constitution"; there was the NCA which felt that they are a representative of various interest groups; and there was Parliament which regarded itself as the representative of the people in the country's constituencies. The ZANU (PF) Government was now taking the initiative, but there were many observers who still wondered why it should have taken nearly 20 years to realise that the constitution needed to be reviewed. Besides, political analysts asked whether it was not the same ZANU (PF) government that defaced the constitution, to what it is today, by making the controversial amendments. This fact made ZANU (PF) (the Politburo) insincere about constitutional change and its move was an attempt to take away the initiative from civic society and the opposition. It was believed that the Lancaster House Constitution was not the evil document that it was being made out to be. The most undemocratic features were created by amendments by the same ZANU (PF) government.

By March 1999 the constitutional reform process had deteriorated into a political stand-off between the ruling ZANU (PF) and the NCA. President Robert Mugabe and his party insisted that they should be responsible for nominating 300 commissioners (including the 150 MPs) that should be charged with drafting the constitution. Under the Commissions of Inquiry Act (Chapter 10:07), President Mugabe was expected to appoint the other 150 commissioners. However, civic organisations insisted that the fact that commissioners were going to be hand-picked by the government in the form of Dr Eddison Zvogbo, negated the very principle of inclusion and participatory democracy which was understood to be lacking in the discredited amended constitution. It was the contention of the civic organisations that the process of appointing a commission was flawed in that the commission would be put in place in terms of a law that upheld sweeping executive powers to modify, amend or reject altogether all findings of the commissioners. The organisations emphasised that involvement by the government should be facilitative and not determinative because the formulation of a constitution was the exclusive preserve of the sovereignty of the people.

Brushing aside the NCA, President Robert Mugabe appointed a 395-member commission on the 28 April 1999. The Constitutional Commission was chaired by the Judge President of the High Court, Justice Godfrey Chidyausiku, with Bishop Jonathan Siyachitema of the Anglican Church, former University of Zimbabwe vice-chancellor Professor Walter Kamba and Mrs Grace Lupepe as vice-chairmen. Dr Charles Utete, the Chief Secretary to the President and Cabinet, was the secretary of the commission. According to Proclamation No.6 of 1999 in Statutory Instrument 138 A of 1999 published in a Government Gazette Extraordinary, all members of the commission automatically became Members of Parliament. In the Proclamation, the President said, "I direct the said Commissioners to compile a report of their findings after the said inquiry, which report must be submitted to me not later than the 30th November 1999, although they will be at liberty to report their proceedings to me from time to time."

That act alone went further to demonstrate that Zimbabweans yearn for a democratic constitution of their own making. However, how could a commission be democratic when it was composed of people drawn from ZANU (PF), a party which has been failing to come up with a democratic constitution for many years?

The ZANU (PF) government, known for its knack for pulverising opponents, unceremoniously elbowed out other groups that had already started the exercise. Opposition parties had for years called for changes to the constitution, particularly the laws governing elections and the need to trim presidential powers. It can be recalled that for ZANU (PF) to abandon its avowed objective to create a one-party state, the Zimbabwe Unity Movement had a significant role to play when it was formed in April 1989. Then in September 1995, the Multi-Party Consultative Conference (comprising some seven opposition parties) started to agitate for constitutional changes. It could also be said that by boycotting both the 1995 parliamentary and the 1996 presidential elections, the opposition parties brought pressure to bear on the ZANU (PF) government to recognise the need for constitutional reform. To add to the growing aspirations of the people of Zimbabwe for a new constitution, opposition parties formed the National Convention for Change (NCC) at the end of 1998 and were able to publish a draft constitution in early 1999.

One must be quick to point out that the Independent Press also articulated its opposition to the authoritarianism of the Mugabe regime. As a channel for the dissemination of democratic ideas and practices, the Independent Press is seen as an integral part to the very process of socio-political change. Since the advent of the Independent Press in Zimbabwe, the institution has played the role of innovating and mobilising transformation, exposing corrupt activities in high places and fostering a new political culture.

Therefore, what the President and his Cabinet did was literally telling these stakeholders to go to hell. Cde Eddison Zvobgo, who was personally responsible for handpicking about 240 commissioners, did not mince his words when he said: "Anybody can sit down under a tree and write his or her own constitution and it may even be a stimulating exercise. But the result of that exercise does not become a national constitution.... Our position is that we are going to consider no other document except the one that is going to be produced by the commission appointed by the government. We will not take notice of the draft constitution produced by the NCA or any other such group. Such drafts are just political essays on constitution making and they are only useful to get good grades at universities and not for national constitution making," he concluded. (The Financial Gazette, 6 April 1999.)

Looking at the draft constitution produced by the 1999 Constitutional Commission, one could not help observe that most of the ruling party's constitutional proposals to the Commission got the nod ahead of submissions made by the general public, opposition political parties and other interest groups. ZANU (PF) again triumphed over the will of the people. The ruling party, dragged into constitutional reform kicking and screaming by civil society, showed beyond any shadow of doubt its contempt for the electorate. The tragedy was that the Constitutional Commission succumbed to ZANU (PF)'s seduction. The people told the Commission in unambiguous terms how they wanted to be governed. This was largely disregarded. The draft constitution was an imposition from above, as it did not even begin to approximate the people's written and oral submissions.

In a referendum held between February 12 and 13 2000, President Robert Gabriel Mugabe suffered a humiliating defeat on the draft constitution, which his opponents said was designed to entrench his rule. Final figures announced by Registrar-General Tobaiwa Mudede showed that 697,754 or 55% voted against and 578,210 in favour of the draft constitution.

Representatives of both ZANU (PF) and the MDC went on to hold informal talks between 2003 and 2004. The talks spearheaded by the Minister of Legal and Parliamentary Affairs, Patrick Chinamasa and the then MDC Secretary-General, Wlshman Ncube were held in a bid to break the political deadlock which mainly stems from disputed elections. It is now public knowledge that the two negotiators produced a draft constitution (which Mbeki has publicly confirmed) from the government-sponsored draft constitution that was rejected in the February 2000 referendum and the National Constitutional Assembly document produced around the same time.

Political observers are in agreement that while Mugabe agrees with the idea of a democratic constitution, he is afraid of the people he helped to liberate from British colonialism. The atrocities that his regime has committed against the population (from Gukurahundi to Murambatsvina and the torture and killing of innocent civilians during and after every election and during peaceful demonstrations) also weigh heavily on Mugabe's conscience.

The crisis in Zimbabwe has nothing to do with the British wanting to "re-colonise" the country. It is quite apparent that with the proposed 18th amendment of the Lancaster House Constitution, the president wants to consolidate his power. The amendment will allow the Parliament of Zimbabwe, sitting as an electoral college to elect a new president in the event that the incumbent dies in office or is incapacitated. The amendment will also see parliamentary seats being increased from the current 150 to 210 while the senatorial seats will be increased from the current 66 to 84.

It is significant to understand that Zimbabwe needs a homegrown constitution more urgently than it needs changes in the electoral laws such as the Zimbabwe Electoral Commission (ZEC) Act and the Zimbabwe Electoral Act. It is important that opposition parties, especially the Movement for Democratic Change lead by Morgan Tsvangirai, should not be persuaded into participating in the forthcoming combined presidential and parliamentary elections. They should not be seen as legitimising illegitimate elections that produce pre-determined results. ZANU (PF) has not changed its characteristics. As the Shona say, "Shiri ine muririro wayo haiuregi" (A bird does not abandon its way of singing; old habits die hard.)