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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

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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.

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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.

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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.

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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.

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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.

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