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Minister of Constitutional Affairs, Advocate Eric T Matinenga, answers your questions about the Constitution making process in Zimbabwe - Week 3
Kubatana.net
May 2010

View the listing of all questions and answers here

View week three questions and answers in Shona here

View week three questions and answers in Ndebele here

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1. Today's question has come from Zimbabweans across the country, including Somar: How will our basic human rights be protected in the new Constitution?

Now remember. It is you people out there who will make the Constitution - not me. This question seeks my comments on how human rights should be protected. And I am happy to give my opinions about this.

When one looks at the protection of basic fundamental rights, one must look at how we provide that protection in the Constitution and outside the Constitution.

Firstly, when you are talking about protecting rights in a Constitution, you must make those rights justiciable. That is, the Constitution must provide for an enforcement mechanism, so that the courts are able to provide a remedy in the event of a breech.

Number two, the Constitution must protect the abuse of those rights, particularly by the Executive. The Executive in most situations seeks to abuse those rights by providing derogations from the justiciability of those rights. By derogation we mean that they want to provide an excuse as to why a right must not be protected. Our Constitution must therefore make sure that those excuses are minimised as much as possible.

Number three - we must provide in our Constitution measures which make it difficult to amend the enjoyment of those rights. So we must make sure that the Executive, or Parliament, or whoever, must not be provided with an easy way out in amending those Constitutions.

And finally, if you are going to have a Constitution which is going to have a justiciable bill of rights, you must also set up in that Constitution institutions which seek to build upon the respect and enforcement of such rights. Particularly in terms of Zimbabwe, we must have a meaningful Human Rights Commission, a Gender Commission, and Anti Corruption Commission, an Electoral Commission. All of these commissions will seek to support the enjoyment of these rights which are justiciable.

Outside the Constitution, what must we do as a nation to protect human rights?

Firstly, our legal system is the preserve of the few. So it is important that we make our legal system user friendly. This means that any body within this country must be able to identify a right, identify whether that right has been infringed upon, and must know how to be able to go to court and get their rights enforced.

In addition, we must cultivate a culture of human rights awareness, where everybody feels bound to honour human rights - including in our schools and among our security services.

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2. How will we ensure that the new Constitution is upheld by all Zimbabweans, even those in Government and the leader of Zimbabwe - and not broken with impunity by some?

Section 30 of our Constitution provides impunity for the President - both in office, and to a large extent when he leaves office. So it is important to decide for our new Constitution - do we want this provision to remain? Or do we want to say that the President does not have this impunity. But there is certain impunity that goes with his office. If the performance of what he does is in good faith, then there is need to provide some impunity, though limited. But when the exercise of that office is done in bad faith, then I don't think there is any need for any impunity in this regard.

I think it is also important that when we look at ways of kerbing this impunity, we go back to what we discussed earlier about the three arms of government and how these should provide effective checks and balances, so that no single arm holds sway over the others, and so that power is not concentrated in one person or office.

When you look at how these arms of government are able to counteract each other, one looks at the impeachment provisions in the current Constitution. Impeachment is when the Legislature feels that the President has gone over bounds and must be recalled.

The procedure for this in the current Constitution is cumbersome. It is very difficult to initiate, implement and resolve. So in the new Constitution we need a procedure which is less cumbersome. We must also introduce a human rights culture, a culture of constitutionalism, where it is not necessary to then impeach because, from the very top - the President, the Prime Minister, the Members of Parliament - everybody accepts that they must conduct themselves in accordance with the Constitution.

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3. Today's question comes from a number of people, including Primrose, Fredy, Onai, and Clark. They ask: How will the rights of minorities - such as the disabled, albinos, ethnic minorities and homosexuals - be protected in the new Constitution?

I am going to respond to this in two parts - a general overview, and then specific ways in which we can protect the minorities and vulnerable groups of Zimbabwe.

In general, any Constitution that is worth its salt will provide an equality clause. This talks about being equal before the law. On that basis, one can argue that everybody - including the minorities, including the vulnerable groups - are protected. This is the beginning. But the reality is different, because some groups are more vulnerable than others.

How do we protect minorities? There are three ways. Let's take for example the disabled. But what I say applies to any group that is disadvantaged - women, a tribal minority, a cultural minority, and so forth. The points I make are equally applicable.

Firstly, we need to address the question of whether we are able to set aside a number of seats in Parliament in proportion to the size of that vulnerable group.

Number two, it is important that we provide a clause or clauses which advances the welfare of those minority and vulnerable groups who were disadvantaged by past practises, such as some kind of affirmative action.

Number three, the setting up of institutions which look after these groups is extremely important - the Gender Commission, the Anti-Discrimination Commission - these are some of the groups which will advance the protection of these various minority groups and vulnerable groups.

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4. Kudzie asked our question for today, which is: Are the principals to the GPA able to hold an election without a new Constitution?

Let me say this: There is nothing in the GPA about elections.

But now let me answer the question. Anybody in Zimbabwe must accept that a new Constitution for Zimbabwe is imperative. In the democratisation process of Zimbabwe, we must aim to get a new Constitution. That new Constitution must address the various known provisions of the Constitution, and it must be supported by institutions which will foster a culture of constitutionalism, which leads to free and fair elections.

In terms of elections, this institution is the electoral commission: ZEC. Now let's go back into history to see why I always go back to this culture of constitutionalism. I'm not going too far back - just to events that are still fresh in our minds - the 2008 elections. The March 2008 elections were held in relative peace and safety. But the June elections were held virtually in a state of war. But what is important is that between March and June 2008 there was no change in the law. Why then could we hold elections in relative peace in March, but in a virtual war situation in June? The answer is because of the absence of this culture of constitutionalism.

It is for this reason that the GPA addresses this issue in Article X, which obliges all the parties to provide an environment for free political activity. In Article XI it obliges all parties to respect the rule of law, the Constitution, and other laws. And in Article XIII, state organs and institutions are obliged to serve Zimbabwe, and not political parties. This also recognises that there is need for retraining of these state institutions, and a need for non-partisan recruitment for these institutions.

I don't want to even think that the Constitution which we are in the process of drafting is going to be rejected. But it might be. And if it is rejected, we will have to fall back on the current Constitution and conduct any elections within the confines of this current Constitution.

I am however heartened by the fact that, even in the current Constitution, we have set up the institutions I've been referring to - the Human Rights Commission, ZEC, and other commissions. But unfortunately in 2008, we had a ZEC that did not conduct itself according to the expectations of the people of this country. We then had elections in June which really one cannot describe as elections at all, never mind as free and fair elections.

So at the end of the day, yes we could have elections without a new Constitution. But really it is better for us all if we have a new Constitution first, and an election under the terms of this new Constitution.

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5. Today's question comes from Shame, who asks: How do we ensure that positions of power in government are not abused by those who hold them? What safeguards can be written into the Constitution to prevent military personnel from aligning themselves politically?

Our current Constitution provides for what we call Service or Executive Commissions - the Police Service Commission, Defence Service Commission and Prison Service Commission. We also know that there is a Secret Service. Some of you know it as the CIO. Some call it persons in the President's Department. But this organisation is not mentioned at all in the Constitution. Why that is so, I don't know. But I think it clearly is indicative of the non-transparency which surrounds this organisation.

When you look at these Service Commissions I refer to, one thing that strikes you is that they are all chaired by one person - the Chair of the Public Service Commission. Now when one looks at power concentration in our current Constitution, one wonders why it was felt necessary that there should be this concentration of power in one person or in certain individuals. I cannot think of any reason why it is the Chair of the Public Service Commission, or his nominee, who should be chairing all of these commissions. There is need, I believe, for the unbundling of power in this regard.

Now as far as political alignment is concerned, we have all had experiences where the various commanders of the police, the defence forces, or the prison service have clearly declared their alignment to the Zanu PF political party. This is very unfortunate, because they are not there to service Zanu PF. They are there to service the people of Zimbabwe - yourself, myself, and everyone. So it is important that our Constitution must make it clear that you make a decision - if as commander of the army you think you can do better as a politician, then by all means, leave the army and become a politician. The same must apply for the Commissioner General of the Police, and the Commissioner General of the Prison Service. So it is important that our Constitution must address this critical issue, so that whoever wants to become the number one in those institutions must be aware of his limitations in terms of aligning himself with any political party.

Now I think it is important that we go back to the previous question, and those articles that I made reference to, which clearly recognises that these state organs and institutions must be reformed. We need then to take what is in Article XIII of the GPA, and make it part of our Constitution, so that we all know that the people who are in these positions cannot aspire for political office, unless of course they choose to leave their positions in order to engage in political office.

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