OPINION - A review of Zimbabwe's Constitution is now being rolled calling for the participation of all Zimbabweans in crafting a historic document for the present and future generations. The controversies about the "Kariba Draft" appeared to have been watered down in the interests of progress.
Local and donor resources have been pledged to ensure the successful implementation of the consultation exercise in Zimbabwe in the next 65 days or so. The chairperson of the Commission indicated that consultations with people in the Diaspora will also be done and interest groups have shown willingness to fund the outreach to augment the initiatives of the State. It is estimated that at least 4 million Zimbabweans are residing abroad all over the World, and hence calls for the need to ensure a clear outreach strategy is adopted that will not disenfranchise the views of the majority of these Zimbabweans.
The challenges now are on Zimbabweans in the Diaspora to pool resources and to come up with effective strategies to popularise this historic event across the World so that as many Zimbabweans as possible participate. It may therefore be prudent to establish focal points which will be within reach of the Commission to consult and gather views given the resource constraints and finite time at its disposal. It will also be ideal for diverse representative groups to begin consulting their membership and to gather critical points of discussion which seek to harness talking points peculiar to the diaspora. I believe some accreditation criteria for such groups is agreed to present views on behalf of members given the sporadic settlement and distribution patterns of Zimbabweans across the world. This consultation should capture views from as many Zimbabweans in the diaspora as possible irrespective of immigration status. As such there should be a way of ensuring that undocumented migrants’ views are taken on board, as these may be crucial in ensuring the views of the worst case scenario are taken on board. How this is done, its the Zimbabwean people who needs to decide..
It is encouraging to note that the Commission acknowledges the apolitical status with which the consultation needs to pursue, as anything short of that will seriously undermine the objectivity of the views and how they will be considered for incorporation into a final draft. The need for members of this Commission to separate themselves from the partisan perspective in pursuit of this objective cannot be overemphasised, and only time will tell if they can withstand this objectivity test. Lessons from the 1999 consultation should be an easy guide on the current initiative to contain the tendency to digress to partisan platforms. Ethical standards and remedial measures needs to be in place to redress this issue should signs of it emerge.
In my earlier deliberation on this subject, I have emphasised on the need for government to separate itself from this exercise and to play a more facilitatory role in ensuring its successful implementation. Like l said, "if a constitution is the source from which government derives its existence and power, the government cannot logically create itself” Logically, a constitution cannot be the act of a government which is to be constituted by a non-existant constitution ; something as yet to be constituted (and therefore as yet non-existent) cannot act. Having said that, it is important to appreciate that in reality, there cannot be a power vacuum in government at any one time inorder to facilitate this role, hence it has to be tackled rather as a going concern, calling on the Constitutional Commission to display maturity, objectivity and professionalism in the conduct of its business. A transparent point of last resort, ideally invested in the Praesidium needs to be invoked strategically as well to guide the sticky and volatile moments in pursuit of a common goal. This task will be challenging given the fragile and skewed nature of the GPA consultations running concurrently with this consultation. The task for the GNU negotiators should be to tackle sticky issues including the media in a manner that does spill into the work of this Commission or influence its work in any way which may render its efforts futile.
My view is that this Constitution making process takes precedence on all other matters of governance as its successful implementation will ensure a stable and tolerant Zimbabwean society. A nation built on a firm and rocky foundation will not falter during trying times, and as such the constitution should be there to guide generations with a sense of pride and belonging. It should encompass Zimbabwe's cultural unique values and ethics that will enshrine sovereign and universal appeal. The question of legitimacy of the constitution is concerned with how to make it command the loyalty and confidence of the people, thus, it must be understood and be an acceptable product of the Zimbabwean people. It needs to be put through the process of popularisation with a view to generating public interest and participation in it and an attitude that everybody has a stake in it. The ultimate product from this process should represent the views and interests of the majority of Zimbabweans to make it legitimate and should guarantee the rights and freedoms universally perceived to be fundamental.
The height of challenges obviously are on how the issues of the rule of law, the property rights and freedoms of expression are formulated. For Zimbabweans abroad, this document should give them hope, inspiration and a source of national pride, which should resonate spiritually with Zimbabwe's national colours and anthem. The key issues of dual citizenship, governance philosophy and protection of property rights will feature prominently in the Diaspora.
The history of constitution-making in Zimbabwe has witnessed self-evident tension between the need to reach a broad-based consensus in the process of constitution-making on one hand advocated by the National Constitutional Assembly (NCA) including other civil society groups, and the need to ensure that the authority of the government is not undermined on the other hand. The subjective outlook of the modus operandi of a people driven constitution is appears to a trump card for the civil society. For all intents and purposes, ‘people-driven’ in this context, means involving key stakeholders in determining the points of consultation in the drafting of the constitution. Perhaps, civil society groups need to reflect on best practises globally, to appreciate that as Zimbabweans, we have a sovereign state to preserve and that the participative role of the Civil society will always be a complimentary role to the State. Perhaps, it may be the lack of this appreciative role that has generated mutual mistrust that has underpinned the constitution-making process that resulted in the rejection of Constitution in the 2000 referendum.
Civil Society ideally exist as a plethora of pressure groups which have evolved as a third sector in corporate governance to provide an independent opinion in governance matters. Ideally, it should an oversight in the independence and professional conduct of the Constitution making commission in the discharge of its functions, in regardless of whether it is as an independent body or not. The Commission should be guided by its terms of reference and ethical code of conduct,because ultimately, its not accountable to itself. It is accountable to the people through the machinery which sets it up, which is the government ultimately. It should provide the much desired checks and balances and perpetually probe this entire process so that the Commission discharges its role satisfactorily. It is critical that as far as possible this Commission be well resourced and be manned by a full -time Secretariat, contracted or seconded for this specific task and directly reporting to the Commission for the duration of the process, so that it does rely on the State to implement its obligations. The funding of this exercise by donors ideally creates this independence for the Commission which should not rely on the whims of the machinery of government to access resources.
It is vital fur us to take a leaf from constitutional reform 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 also draw lessons from, particularly in the areas of terms of office for the parliamentarians and the Praesidium.
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 strengthen the independence of the judiciary, create a rationalised bureaucracy which is optimum for the needs of our country, address the issues of economic confidence and poverty alleviation among other key issues. We need to appreciate that this 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 this constitution and its subsequent amendment should require much more widespread participation by the citizenry, and achieves broad-based consensus. Ultimately, this should render the referendum a formality, and only time will tell.
Josh Chigwangwa writes in his personal capacity. He is the Executive Secretary of the Zimbabwe Community Groups Initiatives UK and is a Business Management student at Hertfordshire University. He worked previously in the Zimbabwe Public Service for 10 years and supported implementation of the Civil Service Reform programme in Public Finance and Administration. He can be contacted on jmchigwangwa@hotmail.com
