Back to Index

This article participates on the following special index pages:

Kariba draft unacceptable in terms of process and content
Zimbabwe Lawyers for Human Rights (ZLHR)
July 03, 2009

In September 2007, leaders from Zimbabwe's three political parties with representation in Parliament met in secret and negotiated a draft constitution. This document, which has come to be known as the Kariba Draft after the location where it was written, remained outside of the public eye until the signing of the Interparty Political Agreement (IPA) a year later. Even now, not many people have even seen the Kariba Draft, let alone examined its contents. Article 6 of the IPA, which established a 19-month constitutional reform process, acknowledged "the draft Constitution that the Parties signed and agreed to in Kariba". In recent months, there has been intense debate in the media and public forums over the proper role of the Kariba Draft in crafting a new Constitution, with various public figures calling for the document to be the foundation for constitution-making efforts in the country.

The Kariba Draft is a deeply flawed document in terms of both process and content. It falls short of the process and content outlined in the Zimbabwe Peoples' Charter, as well as the SADC Guidelines on Constitution-Making and Constitutional Reform. Zimbabwe's constitution-makers should reject the use of the Kariba Draft in the constitutional reform process and instead embrace a people-driven approach to creating a new Constitution of Zimbabwe.

Process

For over a decade, the people of Zimbabwe have demanded a new, democratic and people-driven constitution. In signing the IPA, Zimbabwe's political leaders acknowledged that "it is a fundamental right and duty of the Zimbabwean people to make a constitution by themselves and for themselves". Unfortunately, the process that led to the creation of the Kariba Draft did not satisfy the IPA's commitment to ensuring people-driven processes. The Kariba Draft is the product of secretive negotiations undertaken by individuals seeking to protect narrow political interests. The views of the public were never sought during the talks that led to the drafting of the document, no women were involved in its formulation, and sector-specific interests, as well as the interests of vulnerable and marginalized groups, were not taken into account. Therefore, the Kariba Draft lacks popular and democratic legitimacy, which can only be achieved through a constitutional reform process that is transparent, participatory and wholly owned by the Zimbabwean people.

Content

A constitution is intended to promote the wellbeing of society at large. Far from accomplishing this objective, the Kariba Draft would, if enacted, protect entrenched political interests at the expense of ordinary Zimbabweans.

The content of the Kariba Draft is not new, but rather draws heavily from previous constitutional texts. In terms of structure and substance, the Kariba Draft is derived from the Chidyausiku Constitutional Commission Draft that was rejected by voters in the 2000 referendum. Over half of the articles in the two documents are word-for-word identical, and many of the differences in other articles are extremely minor. Where the content of the Kariba Draft departs significantly from that of the Chidyausiku Constitutional Commission Draft, it is most often because provisions from Zimbabwe's current Constitution relating to executive powers have been placed in the Kariba Draft. As a composite of the current Constitution and the Chidyausiku Constitutional Commission Draft, many of the weaknesses contained in both documents are present in the Kariba Draft. These weaknesses include, but are not limited to:

1. Unchecked Presidential Powers

Under the Kariba Draft, there are very few checks on presidential powers and executive excesses. The President may act unilaterally to declare a state of emergency, declare war, grant pardons, sign treaties, dissolve Parliament and appoint many public officials. Moreover, like the current Constitution, the Kariba Draft contains a provision prohibiting courts from inquiring into the manner in which the President exercises his authority, significantly limiting the Constitution's power to restrain executive action and making a mockery of the fundamental principle of separation of powers, which is essential to any democracy.

2. A Weak Legislature

The Kariba Draft establishes a Parliament that will continue to be dominated by executive appointees who will owe their allegiance to the individual who appointed them. This is an unacceptable colonial remnant which was inserted into the Constitution during the Lancaster House talks prior to Zimbabwe's independence in order to continue protecting the interests of the racist minority regime of Ian Smith. The Senate contains 15 direct presidential appointees, virtually ensuring that the President's party will maintain a senatorial majority despite the will of the people in a popular vote. Further, the President's ability to dissolve Parliament at any time allows him to overcome legislation he opposes, to interfere with the smooth and efficient running of Parliament by legislators, or avoid a vote of no confidence. Also, the Kariba Draft allows political parties to exercise undue influence over the legislative process, as well as an individual member's freedom of expression by tying a parliamentarian's tenure to the retention of party membership.

3. A Compromised Judiciary

Like the current Constitution, the Kariba Draft fails to adequately protect the independence, impartiality and effectiveness of the judiciary. The procedures for appointing and removing judges are dominated by the President, who also exercises a great degree of control over the structure of the judiciary, as well as its resourcing.

4. Politicized National Institutions

The Kariba Draft fails to ensure that national commissions are established and able to operate in an impartial and non-partisan manner. Of particular importance, the commission tasked with administering elections under the Kariba Draft is appointed by the President and is not sufficiently independent to ensure that elections are held in a fair and transparent manner. The same challenges exist in terms of the appointment and functioning of the proposed Zimbabwe Human Rights Commission and the Anti-Corruption Commission. The Kariba Draft further seeks to retain the Zimbabwe Media Commission, thereby ignoring best international practice which favours self-regulation by the media.

5. Narrow Rights Protections

Only civil and political rights are protected under the Kariba Draft's Bill of Rights despite consistent calls from civil society and the Zimbabwean public to include justiciable economic, social and cultural rights in a new constitution. Such economic, social and cultural rights remain downgraded to principles which do not enjoy strong enforcement and require a proactive judiciary for their realization and enforcement. Additionally, many rights, such as the right to property, are subject to so many exceptions that they cease to have meaning, whilst workers will have their fundamental freedoms further compromised with the absence of rights such as the right to organize.

6. Insufficient Structural Protections

Under the Kariba Draft, many government institutions may be manipulated or restructured for political reasons. For example, there is no limit on the number of Ministers that a President may appoint, allowing a ruling party to create a bloated, inefficient government that benefits party loyalists at great cost to the taxpayer. Moreover, the Kariba Draft gives the central government complete control over governance issues, including local government bodies, rather than devolution of powers which would improve efficiency and accountability of popularly elected individuals at the local level.

Visit the ZLHR fact sheet

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP