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The Zimbabwe Constitution, for but not by the people
Youth Forum
October 19, 2012

Zimbabwe is currently in the historic process of writing a new Constitution, but this operation has turned out to be even more overwhelming and tricky than first anticipated. The process is being carried out as one of the major deliverables of the Global Political Agreement (GPA), which was signed on 15th of September 2008. The current Constitution is widely regarded as inadequate and has many shortcomings that need to be addressed, despite it having been amended a record 19 times. The contest to control Zimbabwe's drafting of a new constitution has heated up as the draft produced by the constitutional parliamentary committee (COPAC) is taken to a 2nd Stakeholders Conference. At this conference, the draft will be debated by more than 1000 delegated, presumably including businesspeople and representatives from churches, non-governmental organisations, if not only political parties. After the conference, the draft will be taken to Parliament, where, after approval by legislators, it will then be gazetted and put to a referendum.

But what is it that they will be discussing? The majority of the Zimbabweans are not aware of what is stated in this draft Constitution and what it means for them. This has shown itself to be one of the major shortcomings of the COPAC, in terms of involving the general population in the process.

Fortunately, there are several NGO's in Zimbabwe that are aware of the extent of this issue and have tried to do something about it. The Zimbabwe Lawyers for Human Rights (ZLHR) have recently launched a summarised constitution analysis guidebook, which comprises of an overview of each chapter of the COPAC draft constitution, pointing out what is progressive and what remains problematic. As expected, there is an overwhelming amount of problematic issues that still need to be addressed. The ZLHR chairperson, Mr Andrew Makoni explains that the booklet is a simplified constitutional awareness tool ahead of the anticipated 2nd All Stakeholders Conference this month. The ZLHR has been 100% correct in that there was a dire need for such a tool, as since this process began, there has been a major lack of properly informing and explaining to the general population of Zimbabwe of what this draft Constitution entails and means specifically for them as citizens. It is vital for all Zimbabweans to be aware of the content of the current constitution, whether it requires further improvement, and whether it is likely to positively impact on the country. ZLHR Executive Director, Irene Petras notes how; "a constitution cannot make a positive impact on society in and of itself. It requires a population that is willing to protect its provisions, as well as a government and state institutions and actors who are committed to the principle of constitutionalism and who are willing to make themselves subservient to the provisions of the constitution as an expression of the will of the people ( . . . ). As such, even a perfect Constitution will be meaningless if there is no political will to comply with its ethos, provisions and safeguards." With the conference just days away, it is therefore time for all Zimbabweans to note that the COPAC Draft Constitution is about in order to decide whether to further amend it, and ultimately support or reject it.

Another major issue that has evolved ever since the constitution-drafting process began, is the fact that the process has been hijacked by the country's political parties. The two Movement for Democratic Change (MDC) parties have so far resisted efforts by President Mugabe's Zanu-PF party to include nearly 266 amendments to the draft, whilst Zanu-PF also has objected to a number of proposals in the draft. Some of these include the clipping of the president's executive powers, security sector reforms, dual citizenship and the devolution of power from central government. The former ruling party is also keen to retain the death penalty, which the MDC parties, due to handling and outside influence, are sweating to have repealed.

There are signs; however, that Zanu-PF will not allow the draft to go unchallenged. The Party plans to discredit the draft and show how COPAC "ignored the people's views" by demanding that the national report, which details information gathered during the constitutional outreach exercise, be supplied to delegates alongside the draft.

Rugare Gumbo, the Zanu-PF spokesperson, said that this was merely part of its election mobilisation campaign and there was nothing amiss about it. "We want our members to speak with one voice. We have said as a party that we will go to the second all-stakeholders' conference with the Copac draft, but the national report should be printed before the conference so that everyone can have a copy and compare it with the Copac draft," said Gumbo. Douglas Mwonzora, spokesperson of the MDC faction led by Prime Minister Morgan Tsvangirai, said that Zanu-PF's latest demands were misplaced and undermined the authority of Parliament.

Overall, this move by Zanu-PF seems to indicate that they wish to discredit the current draft constitution by showing the glaring difference between the compromises in the draft against what may be contained in the national report. Civil society groups remain opposed to the draft constitution process, which, they argue has seen the affair become a battlefield for the country's three main political parties. The concern is that these three parties have once again decided to make this important process a political party event, while excluding the voice of the people. The hope however, for many CSO's was that this second stakeholders conference would be a space for ordinary people and hence must not be hijacked by political players who have been active in the constitution-making process for the past three and half years. However, events on the ground have proved otherwise.

It is a shame that those parties which we have trusted to lead cannot put the nation before their political party issues. The constitution is not a document that should be used to propel one party into power or be used to score political points. There should be a clear distinction between legal issue, which constitution-making is, and party politics. The former Chief Justice of South Africa, Justice Ismail Mohammed, once observed that "the constitution of a nation is not simply a statute which mechanically defines the structures of Government and the relations between the government and the governed, it is a 'mirror of the national soul', the identification of the ideals and aspirations of the values binding its people and disciplining its Government". The process of writing a new constitution has become equally as important as the content of the final document for the legitimacy of a said constitution. Thus, genuine public participation is a prerequisite and this means the public should be guaranteed social inclusion, personal security, civic education, good channels of communication between all levels of society amongst other things in order to facilitate this process.

Some would argue that the COPAC constitution-making process was people-driven, given that a national outreach programme was undertaken and this culminated in the production of the "National Report" capturing the views of the people. Nonetheless, arguments and questions will arise as to whether all that which was gathered from the people has been included or represented in this report and how it would then be put into what is to be our supreme law 'the constitution'. When all the views and opinions are gathered; when all is said and done, will it not be down to a hand-picked elite group to decide whether what we as Zimbabweans have made as contributions, is worthy to be in our national constitution?

To make matters worse, Prime Minister Morgan Tsvangirai and President Robert Mugabe are reportedly considering a COPAC takeover for their own benefit. According to some news sites, they are rooting for changes to the constitutional reform exercise, which would in the end give them the final word in a process that is supposed to be run by parliament. According to The Standard newspaper, the two principals issued a directive to the Minister for Parliamentary and Constitutional Affairs to "take over the administration of COPAC" ahead of the 2nd All-Stakeholders conference.

Thankfully, the minister categorically refused, insisting that the process, as defined by the GPA, is to be managed by a committee of parliament i.e. COPAC, and furthermore, advised Mugabe and Tsvangirai not to interfere with that process by making executive decisions. In fact, making such decisions would defy the entire purpose of going through this process of having a people-driven constitution. Phillip Pasirayi, a political activists said that he was surprised and shocked at the Prime Minister for "taking part in such meeting and for allowing Zanu-PF to drag him into their political games (. . .) We all know ZANU PF has never been interested in genuine constitutional reform. Look at the road that the process has taken, with ZANU PF using thugs to resist. (. . . ) civil society has always pointed to the fact that there is no separation of powers in Zimbabwe and the Executive is vested with "imperial powers". By working with Mugabe to take over the constitutional process, Tsvangirai would have joined the ZANU PF ranks and ignored the people."

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