Saturday, 12 September 2009
CONSTITUTION MAKING: A CASE FOR ZIMBABWE
Written by Josh Chigwangwa
Wednesday, 05 August 2009
A written constitution is something separate from and antecedent to government, something to be consciously framed as an act of deliberate choice and creation, which raises a question as to who has the right and the power to frame and approve it – the people or the government.
Obviously, if a constitution is the source from which government derives its existence and power, the government cannot logically make it; government cannot create itself. The constitution cannot be the act of a government which is to be constituted by the constitution;something as yet to be constituted (and therefore as yet non-existent) cannot act. This becomes the focus source of friction in the process. Author: Josh Chigwangwa
The focus of debate is to investigate the root causes of this instability in constitution making processes. The question of legitimacy of the constitution is concerned with how to make a constitution command the loyalty and confidence of the people. In order for a constitution to command the loyalty and confidence of the people, the constitution must be understood and acceptable to the people.
To achieve this understanding and acceptance a constitution needs to be put through a process of popularisation with a view to generating public interest in it and an attitude that everybody has a stake in it. The aim of the constitution-making process is therefore the achievement of a constitution that is legitimate, that guarantees rights and freedoms perceived to be fundamental, and that provides a structure for the effective conduct of the nation’s business for the achievement of its economic development and for the welfare of its citizens. The height of challenges obviously are on how the issues of the rule of law, the property rights and freedoms of expression are formulated.
Appreciated, the constitution is no ordinary law to be modified or replaced by ordinary legislative processes. It must be perceived as a higher law, authorising and governing ordinary law, and commanding adherence to constitutional precepts. While ordinary law may be adopted and altered by legislative majorities of whatever size, the adoption of a constitution and its amendment require much more widespread participation by the citizenry, and the achievement of a broad-based consensus.
Zimbabwe is currently governed under the Constitution agreed at the Lancaster House talks in 1979 in London. This Constitution has been amended 19 times since its inception. An attempt to overhaul the Constitution in 1999 failed after the draft was rejected in the 2000 Referendum. The history of constitution-making in Zimbabwe has witnessed self-evident tension between the need to reach a broad-based consensus on the process of constitution-making on one hand advocated by the NCA, and the need to ensure that the authority of the government is not undermined on the other.
Experience has demonstrated that there is mutual mistrust that has underpinned the constitution-making process between the citizens and the government on the one hand and between the NCA and the State on the other hand. This was evident in the rejection in the 2000 referendum and subsequent episodes of stalemates being witnessed with current process.
The process needs to be created under conditions which provides for checks and balances in terms of the composition of the Constitution - Making Assembly on the one hand and the process of the creation of the provisions of the Working Document under the facilitation and direction of the Parliamentary Constitution Making Commission.
The current Constitution Making process is being implemented as part of a raft conflict resolution provisos presided over and underwritten by SADCC under the Tripartite Global Political Agreement (GPA) between the main political parties in Zimbabwe in the 2008 Elections. Article 6 of the GPA provides for the redrafting of the constitution by the Zimbabwean people. However, the notably, the agreement does not specifically limit the participation in the process to Zimbabweans residing in the country. There has to be a mechanism to involve Zimbabweans abroad to make an input in the draft to provide for wider informed consultation to this historic document.
The GPA makes specific reference to the Kariba Draft to be the basis for coming up with the Working Draft, which seems to be drawing criticism from Civil Society groups.
If Zimbabwe is to evolve democratic principles, the concerns of Civil Society should be allowed to prevail as this is part of what brings awareness to the general public for the need to take a keen interest in this process from the preparatory stages, rather than be involved at the Referendum stage. In my view, the Constitution making Committee needs to comprise a balance of representatives from Civil Society, Traditional Groups, Main political parties, Ethnic Minority groups, Representatives drawn from the Diaspora and Academic Experts. Parliament's Secretariat can provide expertise in drafting the technical layout and content management.
This should allow the draft to be debated in Parliament by elected Representatives to bring about much desired scrutiny and checks. The Kariba Draft in terms of its layout and content, captures most of the fundamental issues in principle. What is key to ensure the final document provides for
* the equitable separation of powers to the Executive Arm,
* provides for the Independence of the Judiciary
* Parliamentary control for the effective operation of Government and powers to deal with rampant corruption in a transparent manner;
* Right-sizing of the Machinery of Government to that which will allow it to operate efficiently and optimally.
* provide for the rights and freedoms of its citizens to enjoy an unfettered and harmonious life style
* protect the country's natural resources from exploitation;
* provide for measures to deal with toxic debts and the protection of property rights.
* Guarantee freedom of the Press to highlight excesses in the utilisation of public resources and flaws in the implementation of the provisions of the Constitution. Josh Chigwangwa, UK