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  • New Constitution-making process - Index of articles

  • Behind the headlines with Dr Lovemore Madhuku
    Lance Guma, SW Radio Africa
    July 16, 2009

    Lance Guma: Hello Zimbabwe and welcome to another edition of Behind the Headlines. We all know the circus that went on at the Rainbow Towers on Monday when Zanu-PF supporters disrupted the All Stakeholders conference that was meant to be held on that particular day. So this week we've decided to get the chairman of the National Constitutional Assembly, Dr Lovemore Madhuku and find out exactly what it is that they have a problem with in terms of the current process? Dr Madhuku, thank you for joining us.

    Lovemore Madhuku: Thank you very much.

    Lance: Let's set the stage here, what exactly is your problem with the current process?

    Madhuku: Our exact problem is very clear. We do not want a process led by politicians in the writing of a new constitution. We believe that the writing of a new constitution must be led by an independent body which is of course set up by discussions between politicians and civil society and broader society but once the process is said to be starting it must be led by an independent body. The current arrangement is where it is led by a select committee of parliament which is actually a misleading term, it is led by representatives of the political parties who are in government at the moment and that can hardly produce a real genuine constitution. So our problem is about the leadership of the process. Who is spearheading the process? In this case it is the politicians; we don't want that, we would want an independent process which will not be controlled day in day out by the political parties.

    Lance: But your critics Dr Madhuku are saying the politicians you are talking about are elected representatives who've got constituencies that they are representing.

    Madhuku: I think the critics are missing a very fundamental point. Being elected does not give you the mandate to do anything about the life of the people or the lives of a society. Being elected gives you some leeway to do certain things. Our argument is that being elected is irrelevant in the process of writing a constitution because a constitution sets the rules for how elections must be handled, for how elected representatives must behave. We are really getting basic rules in place and that has nothing to do with being elected.

    Lance: Just yesterday I was talking to a senior government official from the MDC side and he was saying the problem they have with your stance as the NCA, although you talk about a people-driven constitution is that they also feel equally that civil society is not the people.

    Madhuku: Well I think that our role as civil society is not to write a constitution. We are not saying as NCA, as ZCTU, as the rest of civil society we want to write the constitution of the people. We are saying they must put in place a system that will allow the genuine views of the people to be expressed. That is what we are saying. So Civil Society doesn't want to write a constitution so that criticism is misplaced. We have never said we want to represent the people in writing a constitution but we are representing a substantial portion of the population in saying let's have an independent process. So our message is about creating a framework for a real genuine constitution writing process.

    Lance: Now we did cover a few months ago that you had that meeting with the Prime Minister's office trying to see if maybe you could reach a compromise and a lot of people are asking this question saying was it impossible for the two groups, yourself and those in government to meet halfway?

    Madhuku: I think the problem we are getting from many of our people is that they are very slow to realise that the Prime Minister is no longer a person who can deliver the basics of our democratic struggle; he can no longer deliver anything. He cannot deliver I know the basics that we need to turn around the economy, improving the lives of the people, what we have been yearning for the past ten, 12 years. He also cannot deliver the basics of the democratic liberties that we want, he cannot give us a democratic constitution, so I think that this idea of still wanting to place some relevance to the Prime Minister is I think getting out of hand now. We have to fight now on our own as people or as organisations but not to expect the Prime Minister, he is now in the same position as the president.

    Lance: I'll continue referring to this conversation I was having with this government minister because he did pose some interesting questions which maybe I think our listeners would want to hear your response. They feel that the NCA has a certain unilateralism about their approach that it's either the NCA way or no way. Do you think that is fair criticism that you are being accused of not being flexible in terms of a compromise in crafting a way forward?

    Madhuku: I don't understand where that criticism is coming from because there's been no unilateralism; there's been no insistence that it's either the NCA or the other. There is only one way, that one way that we must come up with a genuine process and the NCA insists on genuine process and we do not see any genuiness outside, taking constitution making outside the government of the day. This is why the NCA was formed. The NCA was formed on day one we refused to have Mugabe to have anything to do with the making of a constitution and that's why we exist and that's why we are where we are today. What we are now saying is - why should this position be changed? Because we can't see any change coming from the mere existence of the MDC. I think that senior government official you are referring to, seems to have this illusion that if it is not Mugabe and somebody else, that's fine with them.

    Lance: Let's look at the events this week, I'm sure you would have looked at events on Monday, those chaotic scenes and felt somewhat vindicated in terms of your position. What's your observation of what happened on Monday?

    Madhuku: There was no sense of vindication on our part because we knew that despite all that, even if we were going to get worse things than that, I knew that the politicians would still continue claiming that their process is working and so forth. When we saw those scenes we realised and we knew that they were simply confirming the unsuitability of the process being followed. Once you put politicians in that position you always get those kind of scenarios. We are going to get more, sometimes not even forms of violence but in other forms frameworks. What you saw on Monday was a mere circus. You'll get more of this and most of this will come for example, they will tell you that the majority of Zimbabweans have said a particular thing which you and me will agree was never said. So it will be a format, you may disturb a gathering, that is even less than distorting what people are saying. So what we saw on Monday was a confirmation of the fact that politicians are unsuitable as leaders of a constitution making process. But we must also urge that this is what makes it serious, the politicians will not stop at anything to continue what they are doing. You saw the scenes on Monday, you'll see other scenes, you'll get even more and more evidence that this process is not in any way democratic or people driven but they'll push it all the same.

    Lance: Some of those youths were chanting, we're talking about the Kariba Draft; we know Mugabe was addressing his central committee and talking about the Kariba Draft being a framework for this new constitution. Now I know the NCA did a very good critique of the Kariba Draft. Would you like maybe to share your observations with our listeners what exactly do you think is the problem with the Kariba Draft?

    Madhuku: The Kariba Draft has two main problems. The first problem is that it is a document being thrown around just created by the political parties which is very wrong that political parties seek to impose their own views on the people. The second problem with the Kariba Draft is its content. It still leaves all the current problems in that constitution. The problems we have with current constitution remain, the current content remains. For example, the president, under Kariba or in the Kariba Draft, is as powerful, if not more powerful than what he is under the current constitution. The lack of checks and balances which we would want to see in a new constitution, they are absent. Parliament under the Kariba Draft is still very weak, it can't do anything. The appointment process of commissions and so forth, they are all still left intact in the hands of the executive. And there's no extension of any bill of rights there, you still have no social, economic rights that we would want to see entrenched in a constitution. And if you look at electoral systems suggested in Kariba, the cry for proportional representation is not there, the commission running the election is not independent, the Diasporans would not vote in a process that these guys are putting across.

    Lance: I know I maybe asking you to speculate and you don't speak for the MDC but we know that the MDC signed that Kariba Draft. Why do you think they did that? I mean they are opposing it now but they signed it a few years ago.

    Madhuku: But I must also correct you - they are not opposing it. The MDC is just playing games with the people. They are not opposing it. They think that they are cleverer than the people, they'll pretend that they are opposing it when at the end of the day they will have that as the draft. So be clear that the MDC is not opposing it. But to answer your question why they signed it is very simple. They were convinced at the time of the Kariba (Draft) that they will be the next government. So the MDC admires Mugabe's current overwhelming powers so when they had the Kariba, because there's no other way you can explain why a political party that claims to be fighting for a democratic constitution, that claims to be fighting for an accountable executive would ever append its signature to a document such as Kariba. So the reason is that they are lying when they tell you that they are fighting for a democratic constitution. What they have been very clear about which we know is correct and they're not lying about it is that they are looking for power but would use people's desire for change, people's desire for democracy and then they claim those things. So the reason why the MDC signed the Kariba Draft is that they love power.

    Lance: Dr Alex Magaisa a regular columnist for several newspapers and websites wrote an interesting article where he says a new constitution will not save Zimbabwe and what he was observing was an obsession with the constitution as a panacea to all our problems. Would you agree with the argument that it's not really about a constitution but about respect for constitutions because the current one, if observed, is pretty much a good constitution.

    Madhuku: I don't agree with his view. I read his article, it's actually a very confused argument. Respect for constitutions presupposes that there is an existing constitution that is worth respect. I mean it's completely confused. You cannot talk about development or anything without good governance and good governance must be founded on the basis of a good constitution. So to preach that a constitution will not save us is to lose sight of the argument. Those who are pushing for a new constitution are not saying that all our answers lie in the constitution. They're saying that the starting point to a lasting answer to our problem lies in the constitution. So he's lost on that point. I read that, I did not understand what he was writing about. I thought he was under the pressure of having to produce an article every week. That is what we normally come across whenever these academics try and want to meet a deadline of producing something every week, you'd get that some of these articles don't make sense and that is one of the articles from Magaisa which can only be described as OK trying to meet an instalment in the newspaper or something.

    Lance: As I was saying Dr Madhuku, in the coming weeks we are going to be broaching this subject much wider, getting all these people onto the programme. Hopefully we'll also get Dr Magaisa to defend himself, but we're running out of time and my final question is, I saw the statement that you issued - you're running a parallel process to this are you?

    Madhuku: We are not running a parallel process. We are simply organising Zimbabweans to be very alert and to oppose the current parliament driven process. We do not write constitutions as civil society, the NCA will not write a constitution. The NCA is there to organise people, to mobilise them for a democratic constitution, so there's no parallel process. What we are doing which some people are describing as a parallel process is to put across this position that the current arrangement is unacceptable so we will mobilise Zimbabweans to reject the defective constitution coming out of this process and then immediately to get a constitution of their desire.

    Lance: That's Dr Lovemore Madhuku, the chairman of the National Constitutional Assembly, NCA, joining us on Behind the Headlines. Dr Madhuku, thank you very much for joining us.

    Madhuku: Thank you.

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