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New law deprives Zimbabweans of basic liberties
Prof Welshman Ncube
September 11, 2005

This article was published in The Sunday Independent (SA), September 11, 2005

The adoption of the Constitution Amendment Bill (No 17) by the Zimbabwean parliament on Wednesday, September 2 was a retrogressive move for the country. It will exacerbate the crisis of governance which has, within five years, driven Zimbabwe to the precipice of being a failed state.

By amending the constitution for the 17th time since independence 25 years ago, the Zanu PF government has sent out an unequivocal message to the people that it has no respect for the constitution. Conversely, it cannot expect the people to take the constitution seriously; a factor that will serve to intensify the perceived lack of legitimacy within Zimbabwe's body politic in the eyes of the people. This dichotomy goes to the very heart of Zimbabwe's ills, as it symbolises the absence of national consensus on core governance issues and the total lack of public trust in the current government. A constitution should be a symbol of national unity. It should represent a contract between those in power and those who are subjected to this power. It should define the rights and duties of citizens and the institutional arrangements that keep those in power in check. To ensure its legitimacy, a constitution must be formulated in strict accordance with the principle of inclusiveness.

There must be broad public participation and ownership of the final product. The people of Zimbabwe have never had an opportunity to formulate a constitution in this context of democratic legitimacy and produce a truly national document that enshrines and protects our values and rights. We are yet to be empowered with the right to design and organise, in the collective sense, our governance and constitutional arrangements so that they are properly aligned to the agenda of realising the shared goals that defined our liberation struggle. Instead we remain lumbered with an albatross in the form of the patched-up constitution agreed to at the Lancaster House talks in 1979. This document was not an agreement among the people of Zimbabwe; it was a "ceasefire" document that flagrantly failed to include safeguards against arbitrary behaviour by the executive and infringements on citizens' liberties. The government did attempt to replace the Lancaster House model in February 2000, but its draft constitution was overwhelmingly rejected by the people in a national referendum on account of its chronic democratic deficits. The people's desire for a new constitution, which was so apparent during the referendum campaign, remains undimmed.

The Movement for Democratic Change (MDC) and the people of Zimbabwe therefore hoped that the government, given the scale of problems afflicting the country and the national desire for change, would adopt a holistic rather than a piecemeal approach towards constitutional reform. By pursuing the latter route, the government has spurned a golden opportunity to begin the process of reversing Zimbabwe's political and socio-economic decline.

The bill contains a number of self-serving provisions that not only further dilute the democratic content of the constitution but also ensure that it is tailored to suit the whims of President Robert Mugabe and Zanu PF. The provision, which allows for the reintroduction of a bicameral parliament through the creation of a 66-seat senate, is designed to extend the system of presidential patronage. It has nothing whatsoever to do with improving legislative oversight but has everything to do with appeasing and accommodating disgruntled elements in the ruling party whom Mugabe is desperate to harness to his succession agenda. As a consequence, the creation of a senate is aimed at providing jobs for those members of the ruling party who are either unelectable, defeated in internal primary elections or who were rejected by the electorate in March.

This egregious development is compounded by the fact that it will place additional burdens on the fiscus at a time when the government does not have the money to buy sufficient quantities of fuel, food and other basic commodities that are essential to alleviate the suffering stemming from Zimbabwe's unprecedented humanitarian crisis. The Z$50 billion (about R13,2 million) that the government has budgeted for the senate elections demonstrates its skewed sense of priorities and provides a stark reminder of its shocking indifference to the suffering of the people it purports to govern.

The bill also provides for the establishment, under the constitution, of the Zimbabwe Electoral Commission (ZEC). In principle this is a welcome move, as the ZEC was previously a statutory body and national electoral bodies need to have constitutional backing. The problem, however, is that the ZEC, even with constitutional status, is not sufficiently safeguarded from manipulation by the executive. For instance, the president will appoint the chairperson of the commission. Moreover, the ZEC has no jurisdiction over the crucial exercise of voter registration. This remains in the hands of the office of the registrar-general, which has a track record of conducting registration on a discriminatory basis to secure political advantage for the ruling party. By failing to address concerns around the independence of the ZEC properly, the government has signalled its reluctance to reform Zimbabwe's electoral framework in line with agreed Southern African Development Community standards. Given Zimbabwe's electoral record over the past five years, this intransigence is likely to result in more disputed elections.

The failure to institute constitutional guarantees pertaining to the right to participate freely in elections is symptomatic of the insidious political agenda that lies behind this bill. This agenda becomes even more apparent when one considers the likely impact of the reform measures on private property rights and freedom of movement. The adoption of these measures indicates a renewed effort by the ruling party to strengthen its coercive grip on society. In Zanu PF's warped analysis, placing stringent curbs on fundamental freedoms is the best way of perpetuating its tenure. In the year that we are celebrating 25 years of independence, one would have expected a government which claims to be the custodian of the values that guided our liberation struggle and to be expanding our freedoms rather than placing restrictions on them. However, the government will now possess powers under the constitution to deny passports to its critics. This move is part of an integral plan to deny international platforms to its critics and seal off as many of the information arteries as possible, preventing the deconstruction of the distorting narrative peddled by Zanu PF aficionados and exposing the shocking realities on the ground.

The central tenet of the Zanu PF narrative is the disingenuous claim that Zimbabwe's crisis is anchored solely on the issue of land redistribution. The provisions in the bill covering the area of land acquisition underline the depths of the government's deception over the land issue. There can be no dispute over the need to resolve the land question. However, under Zanu PF, the main beneficiaries have been members of the ruling elite rather than the communities and individuals who were dispossessed in the first place.

Land should be given back to the people it was stolen from initially during the colonial era, yet, under the reforms being enacted, state ownership of land seized from white farmers will have constitutional backing. This means that those who are resettled on their land will not regain ownership of it. This is a gross injustice and contradicts the very essence of the land-reform programme. Permanent state ownership of all acquired land must be seen as yet another control mechanism in the hands of the government. It will ensure that the resettlement exercise is conducted on a discriminatory basis, with those seen as not loyal to the ruling party denied access to land or having their leasehold agreements revoked.

Furthermore, the provision covering land acquisition, interpreted in its broadest sense, poses a direct threat to the security of property rights. The government will now possess arbitrary powers to acquire any land which is defined as "agricultural land". The deliberate vagueness of this definition means that property in peri-urban and urban areas could be at risk of compulsory acquisition if activities conducted on a property are deemed "agricultural". Under the new rules, property owners will only receive compensation for improvements made to buildings and will have no right to due process. The denial of the right to due process breaches international statutes to which the Zimbabwe government is signatory.

Moreover, by removing the right of the judiciary to interpret laws and pass judgments on the activities of the executive, Mugabe and Zanu PF are further eroding one of the central pillars of constitutionalism - the separation of powers. Checks and balances are now a thing of the past. The passing of the Constitution Amendment Bill is a recipe for disaster. Neither the ruling party nor parliament had the constitutional mandate to introduce such a bill. Attempts to engage the public and to canvass their views were perfunctory. The whole process was totally lacking in legitimacy. The net result is that the government has made the crisis worse. To help tackle the crisis we need to come together as Zimbabweans and formulate a constitution in a transparent and all-inclusive manner. We all need to have ownership of the constitution and use this document as the basis for healing the divisions bedevilling our society.

*Prof Welshman Ncube is Secretary General of the Movement for Democratic Change

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