FUNDAMENTALS OF CONSTITUTION-MAKING IN ZIMBABWE

The Fundamentals of Constitution-Making: A Case for Zimbabwe

Published on: 27th July, 2009

By Josh Chigwangwa

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.


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 expession are formulated.


Appreciated, the constitution is no ordinarylaw 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 ordinarylaw 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. 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 National Constitutional Aseembly (NCA), and the need to ensure that the authority of the government is not undermined on the other hand.
For all intents and purposes, ‘people-driven’ means involving all key stakeholders in determining the content of the draft constitution.

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 resulted in the rejection in the 2000 referendum and subsequent episodes of stalemates being witnessed with the current process.
The process needs to be created under conditions which provides for checks and balances in terms of the composition and independence of the Constitution – Making Assembly on the one hand, and a particpatory process on the drafting of the Working Document. It is critical that as far as possible that this Assembly be well resourced and be manned by a full -time Secretariat,contracted or seconded forthis specific task and directly reporting to this Assembly for the duratiion of the process.

For all intents and purposes, or tend to agree with argumenst from other commentaries that 'people driven' means involving all key stakeholders in determining the content of the draft. The just ended dramatic All stakeholders conference adopted 16 thematic areas as a basis of defining the broad layout of the envisaged constitution. The process will assume greater relevance if the thematic sub-committes transverse the length and breadth of Zimbabwe, including reaching out to Zimbabweans in the Diaspora, gathering their wishes and aspirations without political interference and intimidation. This will make the process acceptable to the majority of the populace, rendering the Referendum a formality.

It is also important to take a leaf from constitutional experiences of other countries as part of a learning experience. The South African Constitution is widely regarded as one such document we may benefit from noting that it has unique situations almost similar to our background and history. I have discussed experiences from the Nepal's constitution-making road map which we may akso draw lessons from, particularly in the areas of terms of office for the parliamentarians and the presidium.

In conclusion, it is vital for the final document to jealously guard the rights and freedoms of its citizens, to deal with issues of corruption which have eroded the social fabric, to stregthen the independence of the judiciary, create a rationalised bureacracy and Executive which is optimum for the needs of our country and to address the issues of economic confidence and poverty alleviation among other key issues.

WHAT IS DEVELOPMENT AID ?

I think what is required in the first instance is to define Development Aid and identify its proponents and sources. Aid is a broad area as a strategy in tackling sustainability in both developed (DCs’) and developing countries.(LDC’s)


For DCs, it may be a strategy to create an enabling enviroment to meet projected shortalls in the sustainabilty needs and mitigation measures for containment of epidedemics. Hence Aid is tied to conditions and obligations to implement and monitor project implementation. For example, the development of the lower Zambezi Valley was linked to seisimic studies that seemed to suggest that they may be oil and Uranium deposits in the Valley. This has been uninhabited over 1000s of years with known existence of elephants, buffalo herd ,tigers and giraffes among other natural habitats. Although it was linked to creation for land for resettlement, this is flood plain which may not have sustainability to effects of global warming.


A substantial amount of development aid is committed to provision of technical expertise and equipment, hence the notion that it is tied. This is always a precondition because it also becomes a vehicle to provide employment , research and a stimulus package for the DCs. This is ultimately linked to the GDP and becomes the fundamental underlying principles of Development Aid. Hence, Thomas Mapumo’s song with lines such as “Something for something and Nothing for nothing,” quickly resonates with the people.


For LDCs, the scope for initiating development to satisfy local needs is clear, but is constantly frustrated due to lack of technical expertise, equipment and of course resources.There has been a lot done to develop capacity and the effect brain drain has derailled continuity and unstable governance issues have been retrogrogrressive.This has contributed to high dependence on DCs hence the anathema high debt and declining ability to service debt aid.

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

jmchigwangwa@hotmail.com

OXFAM'S ZAMBIAN EXPERIENCES AND CHALLENGES


Thursday, August 20, 2009 at 12:24am

The Executive Secretary of Zimbawbwe Community Groups UK, Josh Chigwangwa, last night attended an invitational feeback workshop hosted by Mary Malpas at Oxfam's Online Hub factory in Welwyn Garden City. Mary Malpas Oxfam Trading’s Communications Coordinator made a presentation about her recent trip to Zambia and what Oxfam is doing to overcome poverty and suffering. The workshop was also attended by supporters of various local organisations, providing an opportunity to network, meet like-minded supporters of Oxfam's work at the WGC online hub. Mary touched on the plight of many children who have orphaned as a result of the scourge of HIV and Aids, the Oxfam's challenges with a populace dominated by christian values, presentations of the devastation caused by floods particularly along the Zambezi and Luangwa flood plains.


The writer resonated with most of the presentations having worked for 3 years in the Zamabezi Valley assisting rural communities with water and sanitation projects, reclamation of gullies and the communal areas management of indigenous resources (CAMPFIRE) which helped control poaching activities and raised funds for community developments.She illustrated pictures of outlying areas were 240 children shared a single Teacher providing services on a voluntary basis and the insecurity of food supplies due to heavy rains and flooding. The classroom is a makeshift thatch comprising sand filled floors with logs tilted as benches. The majority being boys attending school whilst girls have to fend for the familiy at home.There is need to augment and support the efforts of Oxfam to alleviate poverty in remote parts of Africa due to marginalised support from Local Authorities.


Welwyn Garden City Online Hub is manned by volunteers who facilitate the sale of clothing on line to raise funds for this charity, visit www.oxfam.org.uk for more details. Individuals and Community groups are being urged to visit the Hub and register interest to offer services to support the work of Oxfam and shop online as well to mobilise resources for the charity.


You can read a bit about Oxfam's work in Zambia here: http://www.oxfam.org.uk/resources/countries/zambia.html

A LEARNING EXPERIENCE FOR ZIMBABWE COMMUNITY GROUPS IN THE UK

A LEARNING EXPERIENCE FOR ZIMBABWE COMMUNITY GROUPS IN THE UK

Tuesday, September 8, 2009 at 12:23pm


How to cut it: setting up a hairdressing business in Romania Yusuf

Hamad,Businessman,Bucharest, Romania.Yusuf Hamad considers himself to be a Romanian. He first came to Bucharest, Romania 17 years ago from Turkey. In 1992 he created his first company: ACOMA Beauty, a hairdressing salon. He finally obtained his Romanian citizenship after five years of living in Romania and after taking a “quite difficult exam”, he says almost laughing. He first created his hairdressing salon in a studio flat with just one member of staff. He continually trained his employee in order to keep pace with the increasing modern demands of the styling market. Yusuf says that in 1992 there weren’t so many laws and of course so many taxes – in Romania almost all the national institutions were created in that time or were reorganizing themselves. “There was a very big difference from what is happening now, when we have so many taxes, ones that I can understand, but some others that I really don’t see the rational explanation for”. Yusuf continued his business with only one employee for 3 years and after that he made the decision to hire one more person and because of the customers’ increasingly demands, hired one further person. Yusuf saw that in order to further develop his successful hairdresser’s business, he would need a bank loan to buy equipment, specific furniture and to move to another headquarters. He took two loans, one for a new headquarters and another one for equipment and furniture. “At that time the interest was quite good, but now because of the economic crisis it is very difficult for an entrepreneur to get credit from the bank, as the interest has gone up too high and is unaffordable for the majority of the SMEs [Small and Medium Enterprises]”. With the funds he’d borrowed from the bank, Yusuf bought a very nice apartment, arranged it and employed 15 people. He currently has two hairdressing salons: one in an apartment with 15 people that work on shifts and another salon in a studio with two staff members. He still keeps in touch with his family from Turkey and visits them every year with “my beautiful Romanian wife and my two wonderful children”, says Yousuf smiling.Yusuf Hamad considers himself a very lucky person, as when he first came to Romania, he didn’t know what he was going to do, but with the help of some friends he managed to create his first company. Now he is one of the thousands of successful immigrant entrepreneurs from Romania and he is very satisfied with his professional and personal life feeling like a “Turkish-Romanian” in Romania. Compiled by Emilia Stanescu, Institute for Small and Medium Sized Enterprises, Romania --------------------------------------------------------------------------------


Spotlight on... New migrants & entrepreneurship in Europe All successful business start-ups require energy, innovation and hard work. But for migrant entrepreneurs, many other factors also affect their ability to get enterprises off the ground. The shifting political and financial context, including the expansion of the European Union (EU), the emergence of new migration patterns and the international economic downturn, demand a fresh look at the challenges facing new migrant enterprises. Over the past century, businesses set up by migrant communities have made an increasingly substantial contribution to many national economies across Europe. States with significant ethnic minority populations, such as the UK, Germany and Sweden, record a high level of entrepreneurial activity within these communities and a resulting contribution to national profit. In the UK ethnic minorities are estimated to be 60% more likely to start their own business than the rest of the population (with those of Bangladeshi and Pakistani origin leading the way), and such businesses contribute approximately £15 billion to the British economy every year. Migrant-led businesses can range from community-based initiatives with minimal start-up costs and low economies of scale, to international corporations with high turnover and staff. Many play a significant role in sharpening countries’ competitive edge, shaping industries and creating jobs. New research from the UK-based Work Foundation identifies immigrant entrepreneurs as critical in the development of the international ‘knowledge economy’, sharing expertise, skills and ideas across borders. Many businesses founded by migrants tap into international markets, supporting technological and intellectual developments as a result. The context for migrant-led entrepreneurialism in Europe has changed significantly in recent years as a result of changing geo-political circumstances and diverse migration flows. Following the expansion of the European Union in 2004 and 2007 to a further twelve member states, inter-EU movement and the potential for business development across borders has been boosted. Many Eastern European countries such as Romania and Poland have now become significant ‘sending countries’ for people now able to exercise their right to self-employment across the EU. Numbers of refugees and economic migrants moving from countries within Africa and the Middle East to the European Union have also substantially increased since the early 1990s. The increasing diversity of migrant communities living in Europe means that the business development patterns and support needs of these communities are highly differentiated. In particular, although recent migration flows have already made a significant contribution to national economies, there is still a broad absence of dedicated research into the needs of new migrant communities in starting up businesses.Immigrants are often referred to as natural and ‘self-selecting’ entrepreneurs, demonstrated by their ability to take risks by moving abroad. On the positive side, starting up a business can increase people’s confidence, sense of belonging and self-esteem in a new country. Some migrants choose to start their own enterprise as an alternative to getting past the perceived or actual obstacles to employment in the mainstream job market. But the success of new migrants in the European business world is by no means a given, as substantial barriers can stand in the way of getting an enterprise off the ground. Low levels of knowledge about the local culture and language, for example, can limit migrants’ ability to navigate the business environment and particularly in getting through the ‘red tape’ associated with start-ups. Low self-esteem can also be inhibitive, particularly for refugees likely to have experienced trauma, or those migrants facing the insecurity of short-term immigration status. Being a new arrival can also make it more difficult to secure loans from banks and other lenders. For some minority communities, securing mainstream funding can also be affected by cultural and religious beliefs, for example the banking issues for many Muslims arising from the Islamic prohibition on lending money for interest. Wider migrant communities can be instrumental in shaping new businesses, the sector they are in, and their chances of success. Where community entrepreneurship is already thriving, financial or institutional support may available to boost new initiatives. But immigrant-led businesses can suffer by being overly reliant on existing social networks for financial support and labour. There is a risk that start-ups which are embedded within local communities can become aimed towards a narrow market with little mainstream appeal, and/or dominated by local politics.New immigration policies can also impact on new migrants’ ability and willingness to take the risk of starting up a business – an issue which has been better-researched across the Atlantic. Recent findings from the Venture Capital Association found that more than two-thirds of immigrant entrepreneurs surveyed in the USA felt that immigration policies, making long-term settlement there more difficult, had held them back in starting up their own business. People are unlikely to embark upon the investment needed to build a new enterprise unless they are confident of their future ability to stay in that country. Moves by many European governments to restrict the possibilities for long-term settlement of migrants are likely to increase the barriers for new would-be entrepreneurs.Targeted business support and advice for new arrivals to European countries can play a crucial role in building confidence and skills, and is even more valuable within unstable economic times. In the UK, enterprise consortia such as the Minority Ethnic Enterprise Centre of Excellence (MEECOE) report that there is a particular lack of targeted information and support for business start-ups aimed at diverse migrant communities, despite the government establishment in 2000 of an ‘Ethnic Minority Task Force’. In Ireland, where the ‘Celtic boom’ of the 1990s drew an unprecedented inflow of economic migrants, a number of targeted micro-financing initiatives and training packages for recent migrants have been developed over the past five years.Strategic efforts to target support towards the diverse interests and needs of burgeoning migrant entrepreneurs in Europe will require a much more substantial evidence-base than currently exists. Building and sustaining collaborative relationships between migrant communities, business enterprise support agencies, private companies and local governments will be critical in order to build a better picture of business activity among these communities, and to develop flexible and targeted strategies to meet their needs.EU-IMMINENTproject update... EU-IMMINENT project team, April 2009, Dublin Interested in online resources for business start-ups? The EU-IMMINENT (‘Immigrants into Entrepreneurship’) project is now underway in developing an online training resource for immigrants wishing to start up a business in one of five European Union countries: UK, Ireland, Germany, Poland and Romania. The project was launched in October 2008 and will run for a total of two years, during which the team will devise and compile an online training programme and exercises for potential entrepreneurs. Drawing on materials developed previously by previous EU-funded programmes (EMERGE and Entre-Pass), this project aims to address the particular needs of migrants in getting a new business off the ground. It will directly complement face-to-face classroom training packages, providing additional support in compiling business plans, networking strategies and other skills.The project partnership draws together organisations from the voluntary sector, social economy agencies and national enterprise institutions from the five EU project countries. Launched in October 2008, the project partners have collectively completed a pilot needs analysis among migrant communities in the participating countries through focus groups and questionnaires. Data has been collected from a total of 120 participants through needs analysis questionnaires in the partner countries, giving an indication of areas where particular support may be needed by migrant communities. Needs varied depending on participating countries, but overall the main areas where a need for targeted support was indicated include accessing business finance, preparation of effective business plans, sales and marketing techniques for new businesses and business networking.