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  • Lovemore Madhuku on Constitution making in Zimbabwe
    Amanda Atwood,
    March 11, 2010

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    As part of the SAPES 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.

    The purpose 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. Listen

    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.

    COPAC asked 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. Listen

    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 other country.

    Everything that 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. Listen

    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. Listen

    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. Listen

    To conclude 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. Listen

    My experience 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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