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Constitutional madness will not save Zanu PF
Prof Jonathan Moyo
August 26, 2005

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 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.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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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