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Statement on the launch of ZLHR's constitution publication
Zimbabwe Lawyers for Human Rights (ZLHR)
January 17, 2012

Zimbabwe Lawyers for Human Rights (ZLHR) has, throughout its history, acknowledged the importance of adopting a truly people-driven constitution for our country. That is why in the constitutional reform process of 2000, the organisation took a position to independently monitor the activities of the process spearheaded by Justice Godfrey Chidyausiku, and why we have taken the same position in relation to the ongoing process spearheaded by the Parliament-led Constitution Select Committee (COPAC) together with our partners, the Zimbabwe Peace Project and the Zimbabwe Election Support Network.

To effectively assess the acceptability of the process and content of the draft constitution which is being developed, ZLHR has thus far been guided, not only by Article 6 of the Global Political Agreement, but more importantly by the Guidelines for Democratic Constitution-Making and Reform in SADC which were adopted by Bar Associations, Law Societies and other law-based organisations in the SADC region (including ZLHR) on 3 November 2007. ZLHR further subscribes to the provisions of the Zimbabwe Peoples' Charter relating to constitutional reform, as adopted on 9 February 2008, and which reaffirm the principles found in the SADC Guidelines. These standards set out a framework within which both the process of constitution-making and the content of any constitution can be technically and dispassionately evaluated, and these are the standards which ZLHR will use to assess the current process.

Today, we release the final set of standards which will ultimately guide ZLHR in assessing the content of any draft constitution which will emerge from the Article 6 process or possible future processes - in the form of a publication entitled Zimbabwe's Constitutional Drafts - Comparisons and Recommendations.

This publication reviews key provisions of the three major constitutional drafts (the Constitutional Commission draft, the National Constitutional Assembly draft and the Kariba draft) and the provisions of the current (Lancaster House) constitution. It seeks to set out critical issues which should be addressed in any constitution under various thematic areas, and to provide guidance to a host of stakeholders - from members of the public, members of Parliament, constitutional committees, and even constitution drafters. Since popular participation of citizens continues to remain lacking, ZLHR believes that this publication can be used as guidance on key principles and provisions that must be incorporated in a constitution for it to conform to the minimum standards of constitutionalism, and this - together with the SADC Guidelines - will be used by ZLHR to assess the acceptability of any draft that emerges from the current Article 6 process. We therefore expect COPAC to comply with the minimum requirements in its ultimate draft.

The constitution that is currently being drafted by COPAC will - if adopted - inevitably shape the legal, institutional and administrative framework of Zimbabwe. It will be used as a standard to measure good governance, while its implementation will also be used to assess compliance with the Rule of Law in our country. Needless to say, for human rights lawyers, this document is the most critical reference for all our work and forms the basis of our beliefs and commitments to our clients and our country - it is why we do what we do.

ZLHR therefore remains greatly concerned about the shortcomings in the process and the continued failure to embrace minimum measures which will allow such process to have popular ownership and confidence. We therefore consider it timely to reiterate some of the key measures set out in the SADC Guidelines mentioned previously, without which we cannot hope to secure a credible constitution-making process in the hopes that those purporting to represent us in the ongoing activities will take heed of our warnings.

Openness, transparency and continuous update of the public

COPAC must ensure that all Zimbabweans are continuously updated on progress and developments in the Article 6 process. It is not enough to place adverts in newspapers which do not cover peri-urban and rural areas, and which the majority of people cannot afford. More pressure must be brought to bear on the state-controlled broadcaster to provide time on radio and television for fair and honest coverage and diverse information, together with robust debate - rather than one-sided propaganda and hysteria - so as to allow people to understand developments and make up their minds on whether this is a respectable process which they can accept.

Where there is conflicting information - for example the case of whether the so-called National Report published in The Herald is indeed an approved document, and what exactly is contained in the Drafting Instructions to the Drafters, particularly where gaps have been found in the National Report - clarification should be made as soon as possible. This will ensure so that the public will not believe that the process is shrouded in secrecy and non-transparent. In this regard, ZLHR reiterates its call for the publication of the official National Report, the Drafting Instructions, as well as what was agreed on by COPAC on the "gaps" which were not covered in the outreach process, and information on who saw it fit to agree on these on behalf of Zimbabweans.

Inclusivity

ZLHR is of the view that there is currently inadequate representation of stakeholders in the ongoing stages of the constitution-making process. The process has been effectively removed from the public domain and placed in the hands of a small group of representatives of only three political parties. This is highly exclusionary, and negatively affects public confidence in the process.

Further, there appears to be unwarranted interference with the Drafters and their work. As observers, we were advised that we would not be allowed to "stand and look over the shoulders of the Drafters as they needed space to prepare their draft and should not be interfered with" - yet this is exactly what COPAC has been doing and continues to do. These perceptions of unilateralism and a failure/ resistance to take into account the views of the broader civil society need to be addressed if any public confidence is going to be restored in the process.

Whilst the views of the larger majority must be solicited, dissenting views must be welcomed and viewed as enriching debate. We reiterate, as do the SADC Guidelines and the Peoples' Charter, that there should be receptiveness and openness to diverse views. The intolerance which continues to characterise the constitutional debate is most regrettable and must be condemned. A constitution, throughout history, has never been a simple document in which the views of the majority must prevail at all costs - if this was so, there would be no need for such a covenant, and we would simply rely on the law of "survival of the fittest". A constitution sees to it that the rights of the weak, vulnerable and marginalised in society are also protected, and this must be borne in mind at all times.

ZLHR believes that the process of constitution-making is as important as the outcome itself and hence an un-inclusive process will produce a final document that does not have democratic legitimacy and the confidence of the people. Again, there is need to take heed of this warning.

Conducive operating environment

Regrettably, the operating environment in which the constitution is being drafted continues to remain polarised and repressive. Meetings to discuss constitutional issues continue to be banned or disrupted using repressive legislation which should be a phenomenon of the past. Free speech has effectively been stemmed as a result of pressure from various interest groups whose intimidatory tactics have made it difficult - if not impossible - for other stakeholders to comment or put forward alternative views for fear of retribution. Having been present at the most recent media and civil society briefing of COPAC, ZLHR is fearful that if urgent measures are not taken to address such behaviour, the Second All-Stakeholders' Conference will collapse even more spectacularly than the first, and the conditions preceding the Referendum will not be conducive to stemming violations of fundamental rights and freedoms.

In conclusion, ZLHR reiterates its previously publicised position that, if a new constitution emerges from this process, it can only be a transitional document, and the struggle for a people-owned constitution must continue under a new government with one centre of power. This is so, because constitution-making presents moments of great opportunity to create a common vision of the future of a state, the results of which can have profound and lasting impacts on peace and stability in the country which has been blemished by so much political scars. Only with this common vision can we hope to move forward positively as one Zimbabwe.

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