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Minister
of Constitutional Affairs, Advocate Eric T Matinenga, answers your
questions about the Constitution making process in Zimbabwe - Week
4
Kubatana.net
May 2010
View the listing
of all questions and answers here
View week four
questions and answers in Shona here
View week four
questions and answers in Ndebele here
View audio file details
1.
Please explain the different types of representation we could have
- such as Parliament and / or Senate, and proportional representation.
Also how do we ensure that you do not have to go to a polling station
in your ward or constituency when it comes to national elections
like voting for President?
Our Parliament
is made up of two houses - The House of Assembly and The Senate.
The House of Assembly is made up of 210 members and the Senate is
made up of 93 members. Of these 93, 60 are elected and 33 are appointed.
Of the 33 who are appointed, 18 are chiefs.
In regards to
those who are elected, our Constitution for now provides for what
is known as first-past-the-post. This means that, assuming that
you have 10 political parties who are vying for Constituency A,
amongst those 10 candidates, the candidate who has the highest number
of votes becomes the elected member of that constituency. So, you
may have only four votes out of ten, but this is still the highest
number. The other nine candidates have split the remaining six votes.
But you have the most votes, and so you are the elected representative.
Now there is
a strong argument that this type of choosing a representative is
not the fairest = particularly given that there are 210 seats in
the House of Assembly and 93 in the Senate. A lot of people would
like to have proportional representation instead. In proportional
representation, you do not vote for an individual - you vote
for a party. The party will then have a list, and say, if we win,
we will then allocate these persons in terms of this list to certain
constituencies. So in a particular constituency, you look at the
number of votes cast for a party, and then apportion the seats in
accordance with the total number of votes cast for that particular
party.
For us here
we can go back to 1980. In 1980 we were voting for ZANU, ZAPU or
the United African National Council. Out of those votes, you then
apportioned seats in accordance with the number of persons who had
voted for a particular party. The argument is that this type of
choosing members is inclusive - you don't have the anomaly
I made reference to earlier, wherein a person who gets only four
votes represents a constituency which in fact has a total of ten
persons who have voted.
The other argument
is that maybe we need a middle approach, where we have first-past-the-post
for a certain number of constituencies, and proportional representation
for a certain number of seats. This hybrid will take care of certain
interest groups. So you say you are going to have first-past-the-post
in respect to maybe half the members of the House, but then in respect
to say women's representation you are going to have proportional
representation. This can also make things more inclusive, as you
have more parties coming in and sharing power. But the argument
against this is that you are going to have weak governments, because
everybody is included there. You will then need coalitions or inclusive
governments. I can tell you from my experience with the inclusive
government in Zimbabwe, I certainly don't want to have any
party to it.
The second part
of this question is a suggestion that, because a President is a
national leader, and not a local leader, then any voter should be
able to vote anywhere, as long as that person is in Zimbabwe -
or even in the Diaspora, if we give effect to Section 23A of our
Constitution, which entrenches political rights.
In our last
election in 2008, voting was ward based for the councilor, for the
MP, for the Senator and for the President. Negotiations have been
carried out between the main political parties in this country,
and agreement has been reached that we should actually move away
from ward based voting to polling station based voting.
I certainly
go along with polling station based voting, because I think it does
answer the allegation of rigging. Whether true or not, we have been
told that persons are moved from one polling station to another
to vote in a ward. If you then limit voting to the persons who are
registered at a particular polling station, it means that if you
are not at that particular polling station, you cannot vote. This
means that hopefully we are then able to contain the issue of rigging
which has been a difficulty in the past elections.
So as we go
into the writing of the new Constitution, we need to address the
issue of whether we need first-past-the-post, proportional representation,
or some hybrid of the two. Also importantly, we need to interrogate
the issue as to whether we need any of these person to be appointed
by any party or by any institution.
Listen - English
Listen - Shona
Listen - Ndebele
2.
Today's question comes from Vincent, who asked: How do we
protect the people's Constitution from being amended as frequently
as the current Constitution has been? How do we protect the Constitution
from being altered for political gain?
Now, I think it is accepted
that a Constitution is a document for posterity. It governs what
we are doing today, what we are doing tomorrow, and what we are
going to be doing for years to come. But it is also important to
appreciate that as humans we are fallible, and we are unable to
address each and every issue into infinity. There may be cases where
we need to change that document, because we had not thought of each
and every eventuality.
This question seeks to
address the issue where a Constitution is amended because someone
wakes up tomorrow and says "Look, I had a dream that I must
be in power for the next 50 years, and so I must change the Constitution."
That really is what we should guard against in a Constitution. How
do we do that? There are various ways to address this.
Firstly, you can entrench
certain clauses in the Constitution. We may feel that there are
certain issues that we don't want changed at all - either
indefinitely, or for a period of time. For example, in the original
Lancaster House Constitution there was an entrenched clause that
guaranteed white representation for ten years. So, for that period
of time, the Constitution could not be amended to dilute that provision.
So, we might feel that there are certain parts of our Constitution
which we do not want to allow to be changed until after a certain
period of time. I was just thinking about dual citizenship, and
I thought maybe people might want to look at dual citizenship, and
make that an issue which we entrench, at least for a certain period
of time. We could look at our situation in Zimbabwe, and say for
now, let us allow for dual citizenship, but give people sufficient
time to decide whether they want to belong or not belong. During
that time, our economy is changing and people are having to make
different decisions. So we could say that we will entrench dual
citizenship for 20 years, and after that people will make up their
mind where they want to be citizens of. But this is just my example.
The second limitation
relates to the general amendment of a Constitution. In our Constitution,
we say any amendment should be done by a two-thirds majority. So
any clause in our current Constitution can be amended, as long as
you have two-thirds majority which agrees with that.
There is also another
way of looking at amendments. You look at a particular provision
and ask "Do we need to change it?" If we do, what is
the requirement? You may feel that there are certain clauses in
the Constitution - particularly clauses around the Bill of
Rights - where you feel so strongly about them that you say
the only persons who can amend this clause are the people of Zimbabwe
through a referendum.
So, if you want to reign
in politicians, you can do that in three ways:
- Make amending the
Constitution difficult
- Entrench certain
provisions
- Inculcate a culture
of Constitutionalism in all of us, but particularly amongst politicians.
Listen - English
Listen - Shona
Listen - Ndebele
3.
How will the new Constitution deal with perpetrators of political
violence?
My immediate reaction is that we have sufficient legal instruments
to deal with this issue, and that really if we are politically committed
to dealing with this issue, it does not have to wait for the Constitution.
But maybe it is necessary that we recognise this and elevate this
cancer in our society and place it in our Constitution. Hopefully
if we do so, then everybody will realise that we should never conduct
ourselves in the manner in which we have so far done.
So if we are going to include this in a Constitution, I think the
best place to put it is in the Transitional Chapter, because we
are coming out of an environment where violence has been used in
order to achieve certain ends, and it is important that our transition
recognises this.
Listen - English
Listen - Shona
Listen - Ndebele
4.
Will there be compensation for victims of political violence?
Again, we have sufficient legal instruments to address this, and
I sincerely hope that we should be using these instruments to compensate
victims of violence. But compensation is just one stage in a process
which recognises and seeks to address violations.
Number one, the Constitution therefore should realise that there
are rights, and these rights may be violated. The Constitution should
therefore provide for measures, legislative or otherwise.
Number two, and this, unfortunately, is where we in Zimbabwe have
fallen short, we must provide for the investigation of the violation
of those rights. When we investigate, we must make sure that that
investigation is not selective. It is very sad that we experience
in this country, at this stage, where the investigations are partisan,
and where, in certain cases, the victims of this violence are now
being turned into perpetrators.
Thirdly, we need to provide effective remedies against those violations.
Yes, we investigate. But if we don't go further to provide
remedies against those violations, then one can never feel that
there has been justice in regards to those investigations. When
we have provided those effective remedies, those remedies should
also provide that perpetrators of those violations be brought to
justice.
Listen - English
Listen - Shona
Listen - Ndebele
5.
Today's question has come from a number of people, including
Reason, Robert, Kudzai and Gift. They ask: Please explain what will
happen with the draft Constitution. What will happen if Parliament
rejects the new draft but people approve it in the Referendum, or
if people reject the draft Constitution that Parliament has approved?
Let me give a chronology of the Constitution making process as
set out in Article VI of the Global Political Agreement from where
we are up to where I perceive we are going to end, hopefully with
a new Constitution.
We are now going into the outreach phase, so I have not placed
that into my chronology - we are nearly there.
After outreach, we will go into what we call a Second All Stakeholders
Conference. At the Second All Stakeholders Conference, the draft
which has been crafted, arising out of the outreach will then be
considered.
From the Second All Stakeholders Conference, that draft is then
placed before Parliament for debate.
After Parliament has debated that draft, it then goes to a referendum
and the generality of the people of Zimbabwe will then have a say
on whether that draft contains what they said it should contain
during the outreach programme.
If the referendum passes, that draft which is then gazetted and
put before Parliament for formal adoption. It is put before Parliament
because it now becomes a Constitutional Bill which must be passed
through Parliament formally.
What it means is that if there is any breech in those four stages,
you will not go through to the end. For example, if the Second All
Stakeholders Conference says sorry, this draft is not what the people
said in the outreach, you can no longer have a draft which you place
before Parliament. So you cut that process at that stage.
But let's assume that you go past the Second All Stakeholders
Conference and you go to Parliament for debate. And Parliament then
mutilates that draft, so it no longer bears resemblance to what
the people said in the outreach, or to what the Second All Stakeholders
Conference said. That draft will not probably pass the referendum,
because the people will say this is not the document which we said
we wanted. So it means again there is a break at that level.
What this means is that, if all these four stages do not flow into
each other, at the end of the day we will not have a new Constitution.
Listen - English
Listen - Shona
Listen - Ndebele
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Audio File
- Answer
1 - English - Representation
Summary:
Language: English
Duration: 7min 32sec
Date: May 19, 2010
File Type: MP3
Size: 6.9MB
- Answer
1 - Shona - Representation
Summary:
Language: Shona
Duration: 8min 09sec
Date: May 19, 2010
File Type: MP3
Size: 7.47MB
- Answer
1 - Ndebele - Representation
Summary:
Language: Ndebele
Duration: 4min 01sec
Date: May 19, 2010
File Type: MP3
Size: 3.68MB
- Answer
2 - English - Amendments
Summary:
Language: English
Duration: 5min 06sec
Date: May 19, 2010
File Type: MP3
Size: 4.66MB
- Answer
2 - Shona - Amendments
Summary:
Language: Shona
Duration: 4min 26sec
Date: May 19, 2010
File Type: MP3
Size: 4.07MB
- Answer
2 - Ndebele - Amendments
Summary:
Language: Ndebele
Duration: 1min 53sec
Date: May 19, 2010
File Type: MP3
Size: 1.72MB
- Answer
3 - English - Pepetrators of Violence
Summary:
Language: English
Duration: 1min 35sec
Date: May 19, 2010
File Type: MP3
Size: 1.46MB
- Answer
3 - Shona - Perpetrators of Violence
Summary:
Language: Shona
Duration: 1min 52sec
Date: May 19, 2010
File Type: MP3
Size: 1.72MB
- Answer
3 - Ndebele - Perpetrators of Violence
Summary:
Language: Ndebele
Duration: 35sec
Date: May 19, 2010
File Type: MP3
Size: 560KB
- Answer
4 - English - Victims of Violence
Summary:
Language: English
Duration: 2min 14sec
Date: May 19, 2010
File Type: MP3
Size: 2.05MB
- Answer
4 - Shona - Victims of Violence
Summary:
Language: Shona
Duration: 2min 59sec
Date: May 19, 2010
File Type: MP3
Size: 2.73MB
- Answer
4 - Ndebele - Victims of Violence
Summary:
Language: Ndebele
Duration: 51sec
Date: May 19, 2010
File Type: MP3
Size: 810KB
- Answer
5 - English - Constitution Rejected
Summary:
Language: English
Duration: 3min 24sec
Date: May 19, 2010
File Type: MP3
Size: 3.12MB
- Answer
5 - Shona - Constitution Rejected
Summary:
Language: Shona
Duration: 4min 03sec
Date: May 19, 2010
File Type: MP3
Size: 3.71MB
- Answer
5 - Ndebele - Constitution Rejected
Summary:
Language: Ndebele
Duration: 2min 10sec
Date: May 19, 2010
File Type: MP3
Size: 1.99MB
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