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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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