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Proposed Draft Constitution for Zimbabwe
National Constitutional Assembly (NCA)
January 31, 2002

A. Some of the reasons why NCA campaigned for a NO Vote

1. Process
The process of making a constitution is as important as the content. The people must determine a process of constitution – making which they can dominate. In this way, the principle of democracy is fully entrenched as people will not, thereafter, allow any future government to change the constitution as it wishes. At the same time, a process determined and dominated by the people will ensure that their wishes are put into the constitution. The Constitutional Commission failed in this regard. It was appointed by the President, its timetable was set by the President and the President had the final say over what went into its Draft Constitution. After the Commission produced its draft, it did not go back to the people to check with them whether or not their inputs had been incorporated. Instead, it hurriedly submitted its Draft to the President, who actually changed some of the provisions. The Commission itself also ignored a number of issues raised by the people.

The NCA process is totally different. For instance, the First Draft produced at the end of September 2001, unlike the Draft of the Constitutional Commission, was presented to the people for further debate and for them to say whether or not it reflected their views. In this way, the real views of the people could not be ignored. This Final Draft was produced at the Second All Stakeholders Conference in December 2001 and takes into account all the views expressed by the people.

2. Content
The Draft of the Constitutional Commission had a number of provisions, which were not only contrary to what the people said, but were also not good for Zimbabwe. Some of them are as follows:

• Executive Presidency
  The most serious problem in our current constitution is an all-powerful president with all sorts of powers. The Draft of the Constitutional Commission still provided for an executive president with almost similar powers to the current president, such as appointing and dismissing most public figures, exercising the prerogative of mercy, dissolving Parliament, declaring a state of emergency and so on.

• An Unworkable System of government
  Inorder to mislead the people into believing that it had answered their call for reduced executive powers, the Draft of the Constitutional Commission introduced a Prime Minister whose role was unclear and who could not work without hindrance from the President. For instance, the Prime Minister was said to be the head of government, yet his/her cabinet was chaired by the President. The system had every potential to lead to political instability and an ineffective government.

• A weak Parliament
  The current Parliament cannot easily pass a vote of no confidence in an incompetent government of the day. On the contrary, the President has powers to dissolve Parliament at anytime. The Draft of the Constitutional Commission did not change this and continued with a situation where a law passed by Parliament could be overridden by the President.

• A Window dressing Senate
  The Draft of the Constitutional Commission created a Senate, which had no powers at all. The Senate in the Draft was used to create the impression that the President ‘s powers were being checked by the Senate when in fact it was so weak that it could not effectively provide checks against the President.

• A narrow Bill of Rights
  The Bill of Rights in the Draft of the Constitutional Commission was narrow in scope and did not protect some fundamental rights and freedoms. For instance, the freedom of the press, the right to education, the right of workers to strike, the right to health and full gender equality were not covered in the Bill of Rights.

• Inadequate provisions for free and fair elections
  The Draft of the Constitutional Commission did not provide for a truly independent Electoral Commission. It only used the word "Independent" but the Commission provided therein was nothing of the sort.

• No devolution of governmental powers to the people at appropriate levels
  The Draft of the Constitutional Commission did not provide an appropriate framework for devolution of governmental powers to provinces and other local structures.

B. Key Features of this Draft

This draft seeks to address the key issues of governance in Zimbabwe and has taken into account the NCA’s major concerns about the Draft of the Constitutional Commission. Its main focus is on having an accountable government through various checks and balances. Here are the main features:

• Non Executive President and an Executive Prime Minister
  The executive presidency was overwhelmingly rejected. This draft proposes a ceremonial President and an executive Prime Minister. The latter is a member of the National Assembly and is responsible and accountable to it. A unique feature demanded by the people of Zimbabwe is that the Prime Minister be directly elected by voters, not by Parliament.

• Parliamentary System of Government
  The Prime Minister, as head of government, is required to appoint most of his or her ministers from Parliament. Parliament has been given power to pass a vote of no confidence in the government, in which case, the Prime Minister will be required to resign. Parliament is also empowered to pass a vote of no confidence in a Minister, in which case that Minister must be removed. Although the Prime minister is directly elected by voters, Parliament may, by a 60% majority, remove him or her from office and this emphasises a fundamental departure from the executive President who has powers to dissolve Parliament should it pass a vote of no confidence in him or her.

• Two Chamber Parliament
  Parliament is composed of two chambers; a National Assembly and a Senate. There are adequate provisions to make Parliament really powerful. For example, most appointments by the executive require the approval of either the National Assembly or the Senate.

• Representation of Interest Groups in the Senate
  The Draft proposes the representation of interest groups in the Senate. The groups include women, youths, the disabled, trade unions, ex-combatants, farmers and business. These representatives will replace presidential appointees and will be elected by the National Assembly from a shortlist submitted by members of the public.

• Mixed Electoral System
  It is proposed that for the National Assembly, half the MPs be elected to represent constituencies under the "winner-take-all" system and the other half under a system of proportional representation.

• Recall of Members of Parliament
  There is a proposed provision for the electorate to be able to recall an incompetent or underperforming Member of Parliament.

• Meaningful Bill of Rights
  The Bill of Rights proposed in this Draft is broad and meaningful. In addition to the well known civil and political rights, some of the rights included are: right to education, right to health, right to a clean environment, right to strike, rights of disabled persons and so on. Minority rights have also been protected.

• Death Penalty
  As part of the Bill of Rights, this Draft proposes that the death penalty be abolished in Zimbabwe in respect of all other offences except serious cases of murder.

• Free and Fair Elections
  The Draft guarantees a multi-party system based on regular, free and fair elections. To achieve this ideal, the Bill of Rights provides a set of political rights and the Draft creates a truly Independent Electoral Commission to manage the whole electoral process.

• Independent Commissions to enhance democracy
  A number of independent bodies are created to enhance democracy. These include a Human Rights Commission, an Anti-Corruption Commission and a strong Auditor-General.

• Devolution
  The Draft answers the call by many Zimbabweans for the devolution of governmental powers to people in provinces and other levels. To this extent, it provides for a system of provincial governments with a provincial assembly and an executive council headed by an elected Governor.

• Land Question
  This Draft recognises the critical importance of land. It therefore allows government to compulsorily acquire land for equitable redistribution but requires fair compensation to be paid.

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