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Minister of Constitutional Affairs, Advocate Eric T Matinenga, answers your questions about the Constitution making process in Zimbabwe - Week 1
Kubatana.net
May 2010

View the listing of all questions and answers here

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1. What is the purpose of the Constitution of Zimbabwe? How does the Constitution of Zimbabwe differ from an organisational Constitution - e.g. a youth group

Now, when we are talking about a Constitution, we are talking about a law which overrides any other law in the country. In legal parlance, it is called the Supreme Law of the Land. Because it is the supreme law of the land, everybody resident in that country is obliged to obey it. And anything or any law which is inconsistent with that Constitution is invalid. So you can see that whilst a Constitution should be obeyed by everybody in the country, the Constitution of a voluntary organisation only binds those members who belong to that organisation.

I notice that this question came from Mutare. So if you've got maybe the Sakubva choral society, it means that that society has got a Constitution which only binds the members of that organisation. I stay in Harare, and I'm not in their choir. So I'm not bound by the Constitution of that choral society. But, whether you're a member of that choral society, or whether you are Minister Matinenga who is in Harare, if you are a resident of Zimbabwe, we are all bound by the Constitution of Zimbabwe.

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2. Today's question came from Kudzie, who asked How long is the Constitution making process going to take? When will the outreach programme start, and why has it been so delayed?

Firstly, Constitution making is a process. It is not an event. So when we hear people saying that there is nothing happening in the Constitution making process, one needs to know what is happening on the surface and what is going on in the background, so as to know whether we are still on track, or have gone off track.

We go back to February 2009 to start the Constitution making process in this country. And we go back even further to September 2008 to the agreement between the political parties as to how the Constitution making process should be conducted in this country. After February 2009, with the swearing in of the inclusive government, we were then obliged to put in place the Select Committee. That was done. We were then obliged to hold the first All Stakeholders Conference. That was done in July 2009. I think a lot of you, particularly those of you who have access to television, remember the real disturbance we had in July, and some of you will remember that after that disturbance, the three principals addressed a joint conference, and stated in very clear terms that the Constitution making process was not negotiable, and that this process will be seen to its very end. I am glad that the indications up to now are that we are on our way to fulfil this important requirement of the GPA, even though we are a bit slow.

Now after the First All Stakeholders Conference, we were able to establish Constitutional Themes, in respect of which persons identified are to address these themes. The persons who are going to address these themes have been identified. These are the persons who are going to take part in the outreach programme which will get under way very shortly. We have also trained the rapporterus, who are the persons who are going to be reporting what each and every person says during the outreach meetings.

The outreach programme will be rolled out, I believe, around the middle of May. It may be towards the end of May, but I am confident that come mid-May we will be able to roll it out.

After the outreach, the draft Constitution will then be crafted by the experts, and I can assure you that it is not going to be the Matinenga Draft. Nor is it going to be the Tsvangirai or Mugabe or Mutambara Draft. It is going to be a draft which is going to be crafted by experts who are going to be looking at what you said during the outreach, and who will then gather what you said into a draft Constitution.

After that draft has been done, we are going to go to a Second All Stakeholders Conference. From there, we go to a referendum, which gives you the people the chance to see whether what you said in the outreach is contained in the draft and is what is being presented to you in the referendum. I am sure that that will be in order and that what the people say is not going to be tampered with. I foresee, in terms of time table, that by April 2011 we should have a Constitution that has passed through Parliament and has been adopted by Zimbabwe.

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3. Today's question came from Philebon, who asked: What is the role of the Kariba Draft in the Constitution making process?

People must not fear. They must not be taken in when people say the Kariba Draft will determine the Constitution of Zimbabwe. Let me assure people that there is no special place for the Kariba Draft in the Constitution making process. What we have agreed as the three political parties is that the outreach team should be gathering information on the basis of talking points. These talking points have been agreed by the political parties, and whilst the persons involved are obviously not going to be too particular about these points - because they need to be as inclusive as possible - nobody is going to be waving the Kariba Draft, nor any other draft for that matter, in the outreach meetings. So people should feel free, when they attend these outreach meetings, that they need to contribute to the making of the Constitution for Zimbabwe.

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4. In Matabeleland and Midlands, if there is no devolution of power we will vote no in the referendum. What is the position on devolution of power?

This comment is about how the people of Matabeleland and Midlands will respond if presented with a Constitution which they believe does not provide for devolution of power.

Now let me clarify this point. When you talk about devolution of power, we are not talking about devolution to particular provinces. When you talk of devolution of power, you are talking about devolution to every province, to every local authority. So it is not an issue which should only be a concern for Matabeleland or Midlands, it is an issue which should be a national concern. What is important is that the people in the Midalnds and Matabeleland provinces, and the people in all the other provinces, must understand what devolution is, and what they want for devolution in the Constitution, and then must articulate this position when the outreach programme comes to their area.

When you talk about devolution, you must talk about meaningful devolution. You must talk about both economic and political power at the local level. People talk about devolution and they say we have it now. But when you look at the type of devolution we have now, we have got a devolution which unfortunately answers to the central authority. Your governors are appointed by the President. Your local council answer to the Minister of Local Government. And when you look at economic devolution, you will find that there is really nothing at local level which builds local institutions. So when we are talking about devolution, we must know what we are talking about, and proceed to articulate positions for meaningful political and economic devolution.

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5. Today's question has come from a number of people, including Malile, Marlene, Peter and Cicely, who asked: What are the provisions for citizenship? How will citizenship by birth be determined?

When you talk about citizenship, you are talking about belonging - not in terms of a club, but in terms of the country. So if you belong to Zimbabwe, then you are a citizen of Zimbabwe. But you are only a citizen of Zimbabwe if you can trace that belonging, that citizenship, by birth - either because you were born here, or because your parents or grandparents were born in Zimbabwe. You can trace your citizenship by descent - because your parents or grandparents were Zimbabwean. Or by registration, whereby you have sufficiently stayed in Zimbabwe that the laws of Zimbabwe consider you as somebody who already is a Zimbabwean.

I know that this issue is a major concern in regards to two types of person. Firstly, this issue is a concern for those persons who come from neighbouring countries, or whose parents come from neighbouring countries, like Zambia, Malawi, Mozambique. These people were born in Zimbabwe, but in the last elections were rudely told that, because they claim another citizenship, they are not allowed to vote.

I also know that this issue arises for persons who were born in Zimbabwe, who have been in Zimbabwe for quite a bit of time, but who have been forced by circumstances to leave Zimbabwe and stay in other countries. This is what we call the Diaspora.

Now I have always held the view that it is very unfair that in 1980, the people whom we now call non-citizens were allowed to vote. And they voted for certain political parties. But because we now believe that maybe those persons are going to be voting differently, now those persons should not be allowed to vote because those persons are considered non-citizens.

I think this Constitution should address this very critical issue, and I think this Constitution should seek to make it possible for persons who are born in this country to enjoy all the benefits of citizenship, to enjoy the right to vote, and the right to hold a passport. Also, when you look at the Diaspora, I think it is also important that, until such time that we get our politics and our economics right, that we should allow for what we call dual citizenship so that these people in the Diaspora are able to participate in the political and economic activities of this country.

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