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Constitutional
madness will not save Zanu PF
Prof
Jonathan Moyo
August 26, 2005
http://www.newzimbabwe.com/pages/senate11.13046.html
Zimbabwe's parliament
votes on key constitutional changes next Tuesday which, if passed, will
establish a Senate (Upper House) and also give the government powers to
seize passports of citizens suspected of "threatening the national interest".
Writing for New Zimbabwe.com today, former Information Minister and Tsholotsho
MP Professor Jonathan Moyo says the move is "needlessly controversial,
ill-advised, ill-timed and totally misplaced"
AS THINGS continue
to fall apart in Zimbabwe, thereby making the search for a way out even
more urgent, Robert Mugabe's beleaguered Zanu PF government demonstrated
yet again this week how it has irretrievably risen to its level of policy
ineptitude, political irrelevance and constitutional madness when the
Minister of Justice, Legal and Parliamentary Affairs, Patrick Chinamasa,
tabled in Parliament a needlessly controversial, ill-advised, ill-timed
and totally misplaced omnibus Constitutional Amendment No. 17 whose provisions
are driven by patronage dictated by Zanu PF's sunset politics around Robert
Mugabe's succession. Therefore the bill has nothing whatsoever to do with
Zimbabwe's national interest as it is about Zanu PF interests only. This
is because the bill does not have ideological, constitutional, institutional
or economic principles that are shared by the body politic. All it has
is the principle of political expediency: how to manage the Zanu PF succession
by abusing the national constitution to get Zanu PF beyond its sunset
so that it can look east with a longer horizon and hopefully also longer
lifespan.
Although Chinamasa
opportunistically, actually falsely, claimed that the major motivation
of the constitutional bill is to bring finality to the controversial fast
track land reform program that begun in 2000, the true position is that
the bill is quite messy because it has had to be hurried up to contain
the fires burning from the increasingly bitter succession struggle within
Zanu PF, and growing political opposition to its undemocratic rule, whose
uncertainty has incapacitated government structures and increased rent
seeking behavior as it threatens to split if not kill the ruling party.
Reintroduction
of the senate is temporary
Notwithstanding
Chinamasa's false claims about seeking to bring finality to outstanding
conflicts over land acquisition for resettlement purposes, the indubitable
main purpose of the constitutional bill is to reintroduce the Senate abolished
in 1989 by the very same people who now want to reintroduce it in order
to reward Mugabe loyalists who are either unelectable or who were defeated
in the March 31, 2005 general election so that they can support Mugabe's
approach to his succession in Zanu PF. As such, the bill is a piece of
paper whose contents cannot and will not withstand the constitutional
test of time. The bill's proposed Senate was described by Justice Minister
Patrick Chinamasa to the Zanu PF central committee last May as "a stop
gap measure for "this hour" and "for these special circumstances" and
will thus be a temporary Senate in place for a maximum of five years after
which a different and more permanent Senate would be sought!
Chinamasa told the
Zanu PF central Committee, in an official ministerial document a copy
of which is with the High Court of Zimbabwe, that the proposed temporary
Senate is "the best workable proposition in the circumstances for the
period between 2005 and 2010"and further claimed that the "proposal enhances
representation of traditional Chiefs in that they will, for the and perhaps
only time, be represented in both Houses of Parliament". This alone proves
that the proposed Senate is a patronage institution with a temporary life
for temporary reasons that are removed from enduring principles, institutions
and values that must underpin any constitution worthy of the name. Thus
the composition of the proposed Senate and its method of election are
specifically intended for the period between 2005
and 2010!
This is the only reason
for the amendment, it's all about patronage to secure temporary loyalty,
and that's why it is thoroughly disgraceful. Although the Zanu PF government
would like the proposed Senate to last for five years, developments on
the ground indicate that Zimbabweans will boycott the Senate elections
and that the illegitimate body would not last more than 30 months.
The lie about finality
of land reform
On land
reform, while Zanu PF's declared intention for further amending Section
16 of the Constitution is noble, as indeed everyone now want finality
to the fast track land reform program started in 2000, the proposed constitutional
amendment has nothing to do with the declared intention behind it. If
anything, the proposed amendment will in reality undermine land reform
as a process of empowering the previously landless black majority. The
reasons why the proposed amendment on land reform will not bring any finality
to the contentious issue are as follows.
- The amendment repeats
the nonsense that there should not be any compensation for the land
itself but only for improvements on the land. Surely, this is not a
tenable or enlightened position to keep maintaining against the backdrop
of the experience of the last five years. The issue of compensating
the former white commercial farmers for the land must be revisited in
order to bring finality to the matter. This is necessary to do not only
in order to ensure that the historic land reform exercise is indeed
irreversible but also in the interest of equity and social justice in
order to restore the much needed national and international confidence
in our economy. In any event, the best and most of the farmland in Zimbabwe
will have no market value as an economic asset as long as the acquired
land is not compensated for and so there will be no finality sought
by the amendment.
- In what is clearly
a shockingly barbaric constitutional provision, the Constitutional Bill
provides that a person having any right or interest in the compulsorily
acquired land "shall not apply to a court to challenge the acquisition
of the land by the State, and no court shall entertain any such challenge".
It is terrible to have such a provision in a constitution. Nothing in
the law should be beyond of judiciary scrutiny and due process is the
lifeline of constitutional democracies. Therefore, there is no way a
provision of this kind can ever bring finality to an already contentious
matter and the challenges will keep coming up fast and furious if not
before Zimbabwean courts then before relevant international jurisdictions.
In this regard, this amendment is mischievous because it has the effect
of inviting necessary international intervention on grounds of international
human rights covenants and protocols to which Zimbabwe is already party.
- The constitutional
Bill provides for selective nationalization of the best and most of
the agricultural land. This means that Zimbabwe will henceforth have
three competing land tenure systems: (a) statehold, (b) freehold and
(c) leasehold.
Whereas land leased under a freehold system has a market or economic
value; land leased under statehold has no market or economic value and
thus cannot be used for trading purposes as an economic asset. Having
economically valueless land all over the place will not bring any finality
to land reform.
- Statehold does
not empower the people but empowers only a clique, the ruling clique
that is, which calls itself "the State". This is a serious problem especially
in times such as the present moment when the nation is divided and polarized
and where the levels of public mistrust of the government are very high
to a point where the State is synonymous with a tiny group of individuals
driven by all manner of political, social and economic prejudices.
- The presumption
that land leased under statehold can empower anyone leasing it is a
legal and economic fallacy. In fact, there can be no empowerment without
ownership. The people who had their land stolen during colonialism want
their land back; they want to own and they are entitled to its ownership
and they must therefore be given title deeds without being forced to
lease their land from a small and corruption prone clique that defines
itself as "the State". Because the State is always a contested terrain,
empowering the State is not the same as empowering the people.
- Thus, the Constitutional
Bill's proposed statehold will render land valueless and this will undermine
economic confidence and economic production and mess up property rights
and asset development in an economy where the majority was long dispossessed
of its assets.
- The clique that
calls itself the State will sooner or later after the Constitutional
Bill has become the fundamental law of the land turnaround, as is already
happening anyway, and say that the majority of the people leasing land
from the State, namely the peasants with no other economic means, have
no capacity to fully utilize the land and the land will be repossessed
from the peasants and returned to "the State" (that clique) for reallocation.
The inevitability of this scenario arising from the Constitutional Bill
means that there will be no finality of any kind because the peasants
will never ever give up their struggle for genuine land reform in Zimbabwe
that actually empowers them through ownership and not patronage.
- Ironically, while
Zanu PF is opportunistically claiming that the intention behind the
proposed selective nationalization of land is to bring finality to the
fast track land reform program, the truth is that an acceptable and
civilized "rule of law" process of bringing that kind of finality is
already underway and needs to be supported. Already, the Supreme Court
of Zimbabwe, the highest Court of the land, has upheld the constitutionality
of the fast track land reform exercise. Indeed, the Supreme Court has
upheld the constitutionality of Section 8 of the Land Acquisition Act,
as amended, which vests ownership of land in the State but requires
the courts to confirm Acquisition Orders. There is no reason for tinkering
with the constitution and putting strange things in black and white
where the highest court in the land has pronounced itself and set a
legally binding precedence in favour of redressing social injustice.
- The idea that the
Courts should not inquire into any matter involving fundamental rights
has no place in a constitution of a civilized society. It's awful paranoia
and is actually barbaric.
- Surely, there is
no reason why the government of Zimbabwe should fear its own courts
in the same manner it is already fearing its own people. Moreover, we
should not assume or believe that only the Executive branch of government
has greater wisdom or greater rights than the other branches of government,
namely, the judiciary and the legislature. In fact, between these three
branches, it's always the Executive that sells out and tramples on people's
rights and thus ever poses the greatest danger to our sovereignty, democracy,
human rights and economic growth and development.
- The real reason
why legal and constitutional finality on land reform remains elusive
is simply because Robert Mugabe's Zanu PF government has been unwilling
to put its money where its mouth is by establishing enough administrative
courts to adjudicate over the confirmation of Acquisition Orders. Having
one or two such courts to deal with thousands of cases is not serious
at all.
- In other words,
the reason for delay is administrative and not constitutional. Solving
an administrative problem through a constitutional amendment is the
height of incompetence and lack of creative imagination and a government
that suffers from this to the point of seeking constitutional refuge
has no business pretending to be in power.
- Robert Mugabe
and his Zanu PF government have an opportunity to prove their detractors
wrong by demonstrating an unwavering commitment to the rule of law and
there cannot be any rule of law where the courts are ousted from their
constitutional role of interpreting the law over matters of due process.
ZEC: A legal oasis
in a constituional desert
Besides
the contentious issues around the Senate and land reform, the Constitutional
Bill also seeks to upgrade the Zimbabwe Electoral Commission (ZEC), currently
a statutory body, into a constitutional body. While it indeed makes sense
to do so, the good intention is compromised and subverted by the fact
that it does not make sense to have a lonely constitutional body where
other supporting constitutional bodies as both organs of the State and
democratic institutions of society are absent. A ZEC established under
the current Zanu PF Constitution that replaced the Lancaster Constitution
in 1987, does not meet the constitutional test of principles of democracy
and good governance. Under the Zanu PF State Constitution, the new ZEC
will be a legal oasis in a constitutional desert and there will not be
enough constitutional water to breed democratic practice and values in
our electoral process. That's why this piecemeal way of amending the Constitution
is practically useless save for purposes of entrenching Zanu PF misrule.
Passport or password?
There is
also a provision in the Constitutional Bill proposing to amend Section
22 of the Constitution in order to restrict the right to freedom of movement
by denying a passport to a Zimbabwean wishing to travel outside Zimbabwe
where it is feared or believed or known that the Zimbabwean in questions
will, during his or her travel, harm the national interest or defence
interest or economic interest of the State. Obviously, this amendment
is motivated by the calls for sanctions and other punitive measures that
some MDC opposition members, including Morgan Tsvangirai, have made from
foreign lands. To be sure, the calls have been ill-advised, immature and
uncalled for. But this should not be the basis for an overreaction to
the point of amending the Constitution of the land just to fix a few individuals
who may not know better. Already, the legal position is that a passport
is a privilege and not a right. There is therefore no need to take matters
too far onto the Constitution.
In any case, the presumption
that Zimbabweans need a passport to travel outside the country to make
calls for sanctions and all those unacceptable things is wrong and archaic
because all they really need in the new digital world brought by globalization
is a password and not a passport to interact with anyone anywhere anytime.
The proposal to restrict the freedom of movement by denying some Zimbabweans
passports serves to expose Zanu PF as a sunset party led by backward paranoids.
Three constitutional
myths
A notable
underlying feature of the bill is that, apart from the spurious claim
that it is motivated by government's desire to bring finality to land
reform, Zanu PF is using three dangerous myths to justify its adoption
of a piecemeal approach to constitutional reform when there is overwhelming
evidence that, while they differ on how to achieve it, Zimbabweans are
agreed on the need for a new comprehensive constitution and this agreement
dates back to 1999.
The myth of the
Lancaster Constitution
The first myth
peddled by Zanu PF is that Zimbabwe is still under the Lancaster Constitution
and this claim allows Zanu PF to give the false impression that all it
is doing is to amend a colonial constitution in order to paint its opponents
as running dogs of imperialism who support a colonial constitution. Yet
the truth is that, if a constitution is defined, as it must be, in terms
of its fundamental pillars and principles regarding the structure of government
and approach to fundamental rights, then the Lancaster Constitution was
in force from 1980 to 1987 when it was amended to introduce the executive
presidency in anticipation of the introduction of the one party state.
From 1987 to now, Zimbabwe has had what can be best described as a Zanu
PF constitution wherein the state is Zanu PF and Zanu PF is the state.
It is this constitution, the Zanu PF constitution, that Zimbabweans have
wanted to see replaced since 1999 and it is the same constitution that
is entrenched by the latest constitutional bill.
The myth that ZANU
PF supported the draft constitution
A second
myth that Zanu PF has used to justify why it is introducing a an inappropriate
piecemeal amendment to entrench the current Zanu PF constitution which
Zimbabweans want replaced is a claim that the opposition rejected a comprehensive
new democratic constitution in the February 2000 constitutional referendum
and must therefore live with the consequences of that rejection. Apart
from being false, this is a cynically punitive position not expected of
a responsible government outside cheap electioneering.
The truth is that,
contrary to popular falsehoods also peddled by the MDC and its media supporters,
Robert Mugabe and Zanu PF never supported the draft constitution that
was rejected in 2000. In fact, Zanu PF did not even want to campaign for
it and instead got an ill prepared and under resourced statutory body
without any political structures to campaign for the draft in order to
assure the failure of the referendum. Mugabe was the happiest person when
the draft constitution was rejected because he simply did not want it
and that is why he was quick to gleefully concede defeat and proclaim
the result a democratic outcome. He had won by fooling his opponents into
thinking they had defeated him.
The myth that ZANU
PF got two thirds majority from the March 2005 elections
A third
myth invented after the March 31, 2005 general election is that Zanu PF
was given a mandate to amend the constitution by the electorate. This
would be true had Zanu PF garnered two thirds majority directly from the
electorate during the last election. But nothing of the sort happened
as Zanu PF got 78 seats out of a possible 120 contested constituencies,
two short of the required two thirds. Presidential appointees total 20
(eight governors and 12 non constituency members of parliament) to bring
the Zanu PF total to 98 out of 150 that makes up the total composition
of parliament, again two seats short of the required majority. Zanu PF
has been illegally and corruptly manipulating through patronage and counting
as part of its membership and caucus ten chiefs who are not appointed
by Mugabe but who are directly elected by a special electoral college
of chiefs in order to get the required two thirds majority by bring its
seats to 108. While in practical political terms this illegal manipulation
through the corrupt practice of patronage does assure Zanu PF of the votes
it needs in Parliament, the point still remains that the electorate did
not mandate Zanu PF to amend the constitution because voters did not give
it the two thirds for that mandate to be valid.
In effect, by pursuing
the latest constitutional amendment in the manner it has, Zanu PF has
further subverted and usurped the will of the people and further divided
and polarized public opinion with the consequence of increasing public
mistrust and dislike of the current constitution, the government and its
institutions which in turn incapacitates the government and denies the
political legitimacy necessary for it to become part of the solution to
the political deadlock gripping Zimbabwe today. What this means is that,
whereas the constitutional bill could have been a leadership opportunity
to rally the country and unify it towards a common purpose, Mugabe has
yet again put himself above the nation and used a constitutional bill
to further divide and polarize the country.
Country needs solutions
to real problems
What makes
divisive constitutional bill needlessly controversial, ill-advised, ill-timed
and totally misplaced is that Zanu PF has prioritized it and allocated
scarce resources better utilized elsewhere to the bill's proposed institutions
at a time when Zimbabweans are going through the worst economic suffering
in living memory and when the levels of polarization of political opinion
and public mistrust of the government are at a historic high and when
the international community, including key voices within SADC, is truly
getting fed up with Mugabe's intransigence.
The litany of Mugabe's
intransigence speaks for itself and is there for the asking as shown by
the following examples of the contradictions that played out in Zimbabwe
over the past week that can only be best captured in a sentence as long
as the examples: While the Zanu PF government has been arrogantly and
flippantly rejecting African Union mediation through the good offices
of former Mozambican president Joachim Chicano by demonizing President
Olusegun Obasanjo; and while a three member International Monetary Fund
(IMF) team is in Harare in a last ditch mission to determine whether Zimbabwe
can be saved, by South Africa, from expulsion from the IMF; while Zanu
PF has stepped up its double-talk rhetoric denying that it ever approached
South Africa or anyone else for an urgent bail pout loan to pay off the
IMF debt and import food and fuel; while trading at the Harare Stock Exchange
has come to a standstill for almost a week as stockbrokers protest against
a recently imposed desperate tax they find unjust; while the shortage
and unaffordability of basic commodities has become chronic as the number
of the poor hovers above 80% of the population; while 18% of the population
who had their homes or livelihood or both destroyed by the evil "Operation
Murambatsvina" remain unassisted; while unemployment is now over 75% with
no new jobs being created as companies are closing down and production
is hitting zero levels; and while the United States dollar has become
the currency of choice in the all too important fuel market with the effect
of dollarizing the Zimbabwean economy from a pricing point of view and
thus making a mockery of Mugabe's favorite slogan that Zimbabwe will never
become a colony again, the greatest irony and testimony to breathtaking
insensitivity and ineptitude is that Robert Mugabe's Zanu PF is busy in
Parliament pushing what is essentially a patronage constitutional amendment
for the sole purpose of entrenching Mugabe's personal rule under a de
facto one party state created in 1987.
Mugabe's intransigence must be stopped and the duty for doing that falls
squarely on Zimbabweans at home and in the Diaspora.
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