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This article participates on the following special index pages:
New Constitution-making process - Index of articles
Reflecting on Zimbabwe's constitution-making process
Sokwanele
August 08, 2012
http://www.sokwanele.com/node/2401
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"A
constitution is not the act of a government, but of a people constituting
a government" - Thomas Paine
"The
Constitution, like the Bible, has some good words. It is also, like
the Bible, easily manipulated, distorted, ignored and used to make
us feel comfortable and protected. But we risk the loss of our lives
and liberties if we depend on a mere document to defend them. A
constitution is a fine adornment for a democratic society, but it
is no substitute for the energy, boldness and concerted action of
the citizens." - Howard Zinn
After the violence,
and political struggle of the last decade, and thirty years of one-party
rule, Zimbabwe has embraced coalition
government and the multi-party sharing of power. Establishing
the conditions for the sharing of that power, the Global
Political Agreement (GPA) was fostered by the 'quiet diplomacy'
of former South African President Thabo Mbeki and the Southern African
Development Community (SADC). Since the adoption of the GPA, and
as it dictated, Zimbabwe has undergone a participatory constitution-making
process the culmination of which is a new draft constitution
for its people to adopt or reject by referendum, lead by the Constitutional
Parliamentary Select Committee (COPAC). The following report will
provide an outline of this process, the constitutional inheritance
against which it was undertaken, and the successes, failures, and
prospects of participatory constitution-making in Zimbabwe. We will
briefly examine some general issues of constitutional law and theory
prominent in discussion of Zimbabwe's constitutional change, alongside
key historical and legal issues that provide the backdrop for this
change. We will then cover the constitutional drafts available to
Zimbabwe in recent years and their backgrounds, and finally the
workings of the process itself.
1. Constitutions
and Constitution-making
Whilst it is
not our task to engage in any extended debates over the nature and
content of constitutions and the processes by which they are made,
we cannot engage in discussions of the Zimbabwean experience without
making clear the range of views with which we may understand the
issues. There are differing and contentious views as to what a constitution
should do . is a constitution solely about limiting the power of
governments, or might it have any number of purposes? There are
also differing and contentious views as to how constitutions are
and should be made - can we expect any more from constitution-making
processes that they represent the negotiations and bargains made
by elites at points of crisis in a country's history? A brief
examination of these questions, and questions like them, will be
necessary.
A. What should constitutions do?
As John Rawls,
the most significant political philosopher of the 20th century,
laconically stated, "[i]deally a just constitution would be
a just procedure arranged to insure a just outcome".1 That
is, a constitution lays down the rules by which ordinary legislation
and politics are to be carried out. It is designed so as to insure,
on the basis of what we think justice requires, what will be the
most desirable outcome. The just constitution will be the one "more
likely than any other to result in a just and effective system of
legislation".2
More prosaically,
as Anthony King has stated, a constitution is "the set of
the most important rules and common understandings in any given
country that regulate the relations among that country's governing
institutions and also the relations between that country's
governing institutions and the people of that country".3 This
description of a constitution is sufficiently wide to include that
of the United Kingdom, for example, a country which famously lacks
a unitary written or codefied constitution in the manner of the
United States, but which nonetheless, through its various ordinary
laws, conventions, and historical documents such as the 1215 Magna
Carta and the 1689 Bill of Rights, has precisely this system of
foundational rules and understandings.
We may remember
the words of Howard Zinn cited above: democracy is about more than
just constitutional law. Law lecturer at the University of Kent
Alex Magaisa, for one, argues that we need not mere constitutionality
- the idea that government legitimates its actions by appeal
to constitutional law - but constitutionalism.4 This, as C.L.
Ten recounts, "usually refers to various constitutional devices
and procedures, such as the separation of powers between the legislature,
the executive and the judiciary, the independence of the judiciary,
due process or fair hearings for those charged with criminal offences,
and respect for individual rights, which are partly constitutive
of a liberal democratic system of government".5 Critical to
this approach will be devices such as bicameral legislatures, comprising
of both a Lower and Upper House, judiciaries empowered to strike
down legislation it deems unconstitutional, or the removal of the
executive from involvement in the legislature, so as to reduce the
possibility of legislative dominance by the executive or other kinds
of political grouping.
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