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Madhuku on Constitution making in Zimbabwe
March 11, 2010
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As part of the
Seminar Series, National
Constitutional Assembly Chairperson and University
of Zimbabwe law lecturer Lovemore Madhuku gave a presentation:
Constitution making in Zimbabwe: Reinventing the wheel or learning
from precedent? In his presentation, Madhuku discussed the process
of Constitution making and some of the content issues Zimbabweans
should consider in developing a new Constitution. Below is a write
up of his presentation.
I will address the topic
from two perspectives - the process perspective and the content
perspective. In terms of process, are we reinventing the wheel in
terms of how we make a new Constitution, or do we go by precedent?
And then I will discuss the same question from the content side.
I think regarding
process, one must ask why should we have a Constitution? You can
do without a Constitution, and just be governed by rules that are
made day to day as you go. In our own community here, despite having
a written Constitution, there have been times that we have been
governed by rules as they come - for example the ways in which
the Global Political
Agreement bypasses the Constitution on things like by-elections.
What we know, is that politicians will run the government the way
they want to.
of a Constitution is for society to limit the power of politicians.
You put in place rules that enable politicians to be guided and
controlled, so that those who exercise power cannot do so to the
detriment of individual rights or social well-being. More importantly,
Constitutions are brought into being to advance the view that what
is supreme in society are the governed, not those who are governing
- so that even if you are the president you are below the
rules. A person in power must always know that there is an organ
higher than themselves - the Constitution.
It is not only the rules
in the Constitution that will control politicians and the use of
power; you need other mechanisms as well. The best framework to
control the abuse of power is an alert society.
The Constitution making
process must be genuine and legitimate. If you look at the Lancaster
House process, there was an element of legitimacy, given the conditions
surrounding it. But it was not a Constitution that was being negotiated
there, it was the transfer of power from white domination to majority
rule. I want to equate this to the current situation, in which there
is no agreement about the transfer of power, say from Mugabe to
Tsvangirai. There is no agreement on that. So this has to be a genuine
process. It is not like Lancaster house. There is no guarantee either
way as to how power would move at the end of the process. So we
shouldn't talk about reinventing anything. We must just agree
that the purpose of a Constitution is to limit power.
The next thing is about
the content of the Constitution - what goes into the Constitution?
There are so many precedents around. We can copy a Constitution
from anywhere. But the content of a Constitution must be determined
by the political experience of the people in that country. People
must have a sense of the meaning of what they are putting in there.
So you can't just get a Constitution from the library. The
Constitution must come from the spirit and the hearts of the people.
Zanu PF and the MDC about what kind of set up they wanted in the
executive branch. The question was "do we need an executive
president or Prime Minister." The answer from Zanu PF was
"we need an executive President who shares executive authority
with the Cabinet, and no Prime Minister, as this results in an endless,
unproductive contest for power between the President and the Prime
Minister, that results in a weak state in which neocolinialsm can
thrive." That is their answer - because that is the
lived experience of Zanu PF with the inclusive government.
Now, if you read what
the MDC says, you also get an answer to this question. They say
that the executive powers must be vested in the Cabinet, the President
and the Prime Minister. The President should be elected directly
by the people. Then the President should appoint the Prime Minister
from an MP whose party commands the majority in Parliament.
So I think in terms of
content, we need to debate our own experiences, not take clauses
that happen to be in the Constitution of the United States or some
is objectionable in the current Constitution is reproduced in the
Kariba Draft. And
I think why would anyone call this a new Constitution? For example,
Section 27(2) of the current Constitution says that the President
takes precedent over all other people in the country - the
President is the first person, effectively. The only other Constitution
that has a similar clause is Uganda's. Then I looked at Kariba,
thinking that anyone writing a new Constitution wouldn't even
think to reproduce this clause. But there it is, Section 79(2) in
the Kariba Draft.
We must be clear.
Do we want a new Constitution, that reflects the values that we
want. Or do we simply one some document which we can use for the
next election? The NCA and the ZCTU has said to the MDC - if the
current process is said to be simply the writing of an interim Constitution,
whose purpose is to live to the next election, and you make it clear
that it's not a people-driven Constitution, it's just
a transitional arrangement, fine, no one will have a problem with
that - we'll be like where we were with Lancaster.
In Kariba, Zanu
PF has said that they want to punish homosexuals in the Constitution.
You can imagine that madness. I know from experience in the NCA,
if you sit down with people and discuss, and explain why a Constitution
must have a broad clause that promotes tolerance, they understand.
I did an experiment once, and asked people whether anyone would
really want someone who was of a different sexual orientation killed,
the unanimous view was no. Do you want this person to be persecuted?
Unanimously, no. With further debate, they said it should not be
encouraged. Okay, fine. So how do we deal with it? You will find
that they will accept a Constitutional clause that protects lack
of discrimination on that basis. If this person with a different
sexual orientation wants to be a General Manager of a company, would
you want them not to do that? Ah no, people will say. It doesn't
matter. They should be able to be General Manager if they want to.
When you write a Constitution and articulate the values that go
into it, you need to debate these things in an open way. That's
why I find it very sad reading the Zanu PF answers to the COPAC
questions, because they are all promoting intolerance and hatred.
The NCA advocates
for a people-driven Constitution. This does not mean that politicians
are not involved in the process. They have a very big role to play.
But we want a process that is independent in the sense that once
it starts running, it is not controlled by the politicians of the
day. The politicians must set it up, but it must be independent.
The donors have
taken the dangerous position that they will support this Constitution
making process, it doesn't matter what will happen. The moment
donors come in and pour money into this process, they are undermining
our democratic right to express ourselves. This country is better
off when there is a diversity of opinion. It's possible that
we will spend the next three to four years in a kind of limbo, interfered
with and influenced by outsiders such as South Africa and Western
donors all with their different agendas.
the discussion the chairperson for the evening, UZ professor Rudo
Gaidzanwa shared some of her thoughts.
I am very worried
about machine-type politics in Zimbabwe. We seem to have this propensity
for going to extremes. First everyone goes to Zanu PF, for 10 or
15 years. And now everybody moves to the other side. It's
as if everyone loses their reasoning and critical capacity.
with COPAC also makes me very afraid. COPAC first of all said it
was an inclusive process that would involve civil society organisations
such as the Women's Coalition which I am involved with. Come
the time we were called, they said no, they don't want her,
we want Zanu PF people. The MDC said no, we want MDC people. And
the next thing, everybody who wasn't either or could not be
included. If you are not in the machine, you don't exist.
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