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Constitutional furore: Much ado about nothing
Zimbabwe Human
Rights NGO Forum
March
11, 2013
Introduction
With four days
before the much anticipated constitutional
referendum in Zimbabwe, the Constitution Select Committee (COPAC)
has been crisis crossing the country to raise awareness on the draft
constitution. Both Houses of Parliament
have since adjourned until 7th May after COPAC’s call for
MPs and Senators to join the publicity campaign to make the COPAC
constitution draft is known to the people before the Referendum
and also to urge their constituents to vote YES (Veritas
bill Watch, 8.03.2013).
While in the
case of Zimbabwe, a new constitution would be of symbolic significance
in the quest for the country to re-define itself after decades of
intermittent instability, what appears to be clear is the over-emphasis
on ‘people knowing the draft and to vote YES’ rather
than the need to address the underlying and pervasive culture of
violence and political intolerance.
In this issue,
we bring to your attention some of the reasons why we think the
draft constitution, if it passes into supreme law, is only but a
starting point. We do so by providing an over view of the current
human rights situation, in broad strokes and where necessary in
fine strokes.
Current
operating environment
In the past
few months, Zimbabwe’s leading human rights lawyers have literally
been spending most of their time at police stations, remand prisons
and detention centres in response to the assault on NGOs and civil
society organisations leaders.
These flagrant,
intimidatory and repressive attacks on civil society organizations
and their leaders culminated in the Friday 08 March 2013 charging
of Zimbabwe
Peace Project national director Jestina Mukoko with contravening
the Private
Voluntary Organisations Act, the Broadcasting
Services Act and the Customs and Excise Act. Furthermore, the
police levelled additional charges which included contravening the
Broadcasting Services Act Section 38E (1) (a) for allegedly refusing
or failing to register as a dealer and Section 182 of the Customs
and Excise Act Chapter 23:03 for allegedly smuggling radios and
cell phones. This prompted Zimbabwean Civil Society Organizations
to issue a statement,
condemning the sustained and escalating assault on non-governmental
organisations (NGOs) involved in civic education, human rights monitoring,
public outreach and service provision by the State.
According to
leading analysts, the state apparatus have changed tactics, and
so far they have been following a two-pronged approach; firstly
through the creation of a ‘no go area’ into the rural
communities thereby suffocating alternative sources of information
as well as reminding people of the violence of the 2008 elections
in order to keep the population compliant to the state’s dominant
wishes. The second tier of this approach has also seen much focus
on organisations that are assisting either in voter education, legal
or medical assistance to victims as well as documentation of cases.
In respect of
the first tactic, there have been changes in the environment in
the last few months, whereby communities are being tightened. There
are reported instances community workers being restricted in their
movement both by traditional chiefs and District Administrators.In
the face of all these developments, one would expect the Joint Monitoring
and Implementation Committee (JOMIC) a multipartisan panel that
was first launched on January 30, 2009, pursuant of the 2008 Zimbabwean
power-sharing
agreement, to take action in ensuring the freeing NGO operating
space and peaceful activities but there are reports that this Committee
has been very ineffective. It is reported that JOMIC members have
become very elusive since a number of them are now running in the
political parties primaries as candidates therefore clouding their
ability to run the business of JOMIC. There are palpable fears and
uncertainty in the face of all this. Civil society’s only
remaining viable option is SADC mediators and individual countries.
however the mediators have remained inaccessible to civil society.
We now turn to specific rights
Children,
Women & LGBTs
In the current
climate of uncertainty and without robust mechanism to ensure that
violence doesn’t spiral, there are growing fears that women
and children might be adversely affected. It is therefore commendable
that the head of the United Nations Children’s Fund (UNICEF)
on 8 March 2013 urged Zimbabweans, to keep children out of harm’s
way, ahead of this week’s constitutional referendum and later
this year in general elections. According to UNICEF's press release
which has been widely endorsed, “At times of great uncertainty,
such as during an election, it is important that homes, communities,
and schools continue to be havens of safety for children and that
they have uninterrupted access to basic social services,”
However , in
line with what some Zimbabwe expressed during the International
women’s day the promotion and protection of women and children’s
rights should not be a 'once off' event which happens during national
elections but must be an on-going government commitment. For instance
on the day of commemorating the International Women’s Day
under the theme; Gender Agenda: Gaining Momentum, Zimbabwe
Lawyers for Human Rights (ZLHR) took the opportunity to reflect
on progress made so far in promoting and protecting the rights of
women (including women living with HIV). They reiterated the importance
of promoting and protecting of women’s rights through programmes
and policy that facilitate the meaningful enjoyment of these rights
by all women including women living with HIV who bear the burden
of the disease in the families and communities. In this regard,
ZLHR called on the
Zimbabwean government to provide adequate information, increase
efforts towards raising more funds for the healthcare system and
reform outdated and discriminatory laws, among other demands.
Further, the
discourse of promotion and protection of the rights for children
and women in Zimbabwe should also be all-encompassing to include
the protection of other vulnerable social groups. For instance a
statement attributed to Prime Minister Morgan Tsvangirai in the
Herald edition of Thursday 7 March 2013, where he is quoted as having
said those who want to marry another from the same sex have a problem
addressing MDC-T supporters in Glenview has been labeled
by Gays
and Lesbians Association of Zimbabwe (GALZ) reckless and unfortunate
coming from the Prime Minister. GALZ is of the view that Prime Minister
Morgan Tsvangirai’s statements fuel public prejudice against
LGBTI individuals and contradict the very preamble of a draft constitution
that he is seemingly promoting.
Housing
and Water
On a separate
but related note, there is a wel founded fear that forthcoming constitutional
referendum and the pending elections have also clouded the government’s
attention to issues that really matter to the electorate, such as
adequate housing and water. For instance on 8 March 2013, The Humanitarian
news and analysis service of the UN Office for the Coordination
of Humanitarian Affairs (IRIN) reports
that the shortage of affordable public housing has become a contentious
issue in Zimbabwe due to increasing rural-to-urban migration, thereby
creating a fear of squatter camps. In a Report, it stated that "Local
authorities and the government of Zimbabwe have not really invested
in the provision of housing and accommodation to the citizenry,
except to relinquish this responsibility to housing cooperatives,
the majority of whom are siphoning off the little financial resources
of low-paid workers," Shumba told IRIN.
The situation
couldn’t have been worse given the current dire water shortages
in the urban areas, which raises the sceptre of cholera and dysentry
that previously plugged the country. For instance in a recent meeting
held by Bulawayo Progressive Residents Association residents demanded
to know if there were any plans to build new dams in Bulawayo. They
argued that Bulawayo’s water woes were due to lack of vision
by successive governments and local authorities since independence.
They said it was inevitable for the city to face water shortages
since there had been no dam built since 1976. Residents also expressed
concerns with the fact that Bulawayo’s water chemicals are
running out. They called upon Bulawayo City Council to resolve the
issue immediately to make sure that residents have access to clean
drinking water.
Building
on progressive constitutional provisions & Learning from Kenya
Despite the
gloomy picture painted above, a new constitution for Zimbabwe would
be symbolic and might provide the country with a clean slate and
commitment to right the past wrongs. If viewed from the region,
Kenya is an ideal benchmark that shows that, with political will,
Zimbabwe can also overcome its trials and tribulations. If anything,
if the government continues with its current smart strategy, as
pointed at the beginning, the worst that could possibly happen is
a low voter turn that might bring the credibility of the elections
into question, but there might be less spillage
of innocent blood than in the 2008 presidential run off. However
apathy emanting from harrasment and intimidation would not be a
consolation at all even if less blood is shed, because fundamentally
not even a single drop of blood should be shed and also pushing
a population into a state of submission , mendacity and acquiesence
is bad for democracy and would not serve the country well both in
the short and long run.
With regard
to the intrinsic content and process of the constitution, although
opinions have differed sharply, to a greater and also to a lesser
extent, there appears to be a broad cross party consensus that the
current draft is a good starting point. For instance, Professor
Welshman Ncube, a constitutional law expert and leader of the other
MDC formation opines that, ‘ There can never be a perfect
process to draft the perfect constitution, but this particular one
was as good as it gets’. However, in its analysis of sections
relevant to land policy, especially sections 296 and 297 on establishing
a Land Commission and its role to conduct land audits; and section
72 governing rights to agricultural land, Sokwanele opines
that Section 72 is controversial because it incorporates key provisions
from the previous constitution that were struck down by the SADC
Tribunal on the basis that they were discriminatory and inimical
to international law and the rule of law. Its analysis (available
on request) concludes that compromises made between political parties
have produced a patchy charter with a mix of good and bad clauses.
With regard
to addressing past and future human rights violations, it is relevant
to note that by incorporating several aspects in the draft that
are relevant to Zimbabwe’s transitional justice discourse,
the draft has demonstrated some measure of commitment to non-repetition
of the wrongs of the past. In a brief analysis, the Zimbabwe Human
Rights Forum Transitional Justice department looks at some the key
issues in the draft relating to transitional justice in Zimbabwe.
Conclusion
In light of
the above, Zimbabwe needs to learn from Kenya that that the road
towards institutional reform and a culture of tolerance is full
of painful compromises. Armed with this lesson, if all Zimbabweans
take the constitution draft just as a good starting point to this
painful journey by capitalising on the positives and underplaying
the negatives, then the current constitutional furore will be a
rewarding exercise in the long run and after all not ‘much
ado about nothing’.
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Human Rights NGO Forum fact
sheet
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