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Conflict of constitutionalism in Zimbabwe
Rejoice Ngwenya
February 15, 2010

A constitutional crisis bearing the hall marks of the same protagonists ten years ago is in full swing in Zimbabwe. At the time it could have been easy to declare the government, and not 'civil society-, the other actors, as the vanquished because it was hundred percent ZANU-PF. Back then, 'civil society- was an unusual mix of the Movement for Democratic Change [MDC] and National Constitutional Assembly [NCA].

In this new conflict of opinions, the rules of combat have changed drastically with government now 50% ZANU-PF and 50% MDC. Ironically, some elements of the 'old- NCA are now firmly embedded in government, while others are content hurling brickbats from outside the establishment.

Custodians of modern-day constitutional discourse are the COPAC - the Constitutional Parliamentary Committee co-chaired by both MDC and ZANU-PF legislators who have succeeded in attracting sizeable non-NCA civil society participation. Herein lays the argument. The NCA is brandishing a very rational argument for discrediting what they term a 'government-led- process. They argue that the direct participation of MDC and ZANU-PF politicians will contaminate the quality of the final constitution as it will be tainted with partisan interests. They propose a process that is led by an 'independent- group chaired by a non partisan retired judge.

On its part, the coalition government argues that constitution making is a political process led by legislators who have a legitimate popular mandate of those that elected them. NCA and its allies disagree: "A process led by politicians will reflect the short-term selfish interests of both ZANU-PF and MDC. So we want a truly people-driven process that can stand the test of time." Government then vehemently argues that fifty percent of COPAC participants are members of civil society and have a watchdog responsibility to make the process 'civil society-friendly-!

As fate will have it, I am part of that bit of civil society 'eyes' meant to bring sanity into the COPAC process, and I intend to do just that and hope that my other colleagues will be up to it. There are of course some fundamental limitations in sharing a meal with known beneficiaries of an unapologetic Robert Mugabe tyranny, but that is a continuum of challenges of running a unity government with ungrateful partners like ZANU-PF.

My argument is that civil society, just like MDC; have a role to play in giving Zimbabweans another chance to set the constitutional record straight. Whilst I agree with NCA that the process is flawed, I would be curious to know to what extent the NCA has thus far accomplished its mission - to have a new, people-driven constitution - since its inception 10 years ago. It has been difficult for everyone, but the lingering question is what could be the substantive difference between the NCA 'people- and the MDC 'people-? On many occasions during previous Parliamentary and Presidential Elections, NCA and its allies have put their full weight behind 'Uncle Morgan- - signalling a green thread of ideological homogeneity. Now, if I went to my village in Shurugwi and took a sample of 100 citizens, I bet only two will tell the difference between 'NCA civil society- and 'NCA opposition-, which is good, because the bulk of civil society - progressive that is - is on the side of MDC truth.

In the past 10 years, had the NCA been able to galvanise eight million citizens into constitution-making frenzy, COPAC would have been rendered irrelevant. But time again, the institution failed to attract popular attention, mainly because perhaps, just perhaps, they have not revised their 'street activism- approach - a strategic error. But they need to be supported, so that they add value to the discourse of constitutionalism, for irrelevance is a possibility. The COPAC process is flawed, but other than the 1999 'NO- referendum heavily 'subsidised- by the NCA-MDC alliance - what other 'process- have we as civic society have to show for the millions of USD$ invested in 'constitutional discourse- in the past ten years? It has even been impossible to get a mere two thousand people in the street to protest against ZANU-PF tyranny - so our context of 'popular, people-driven leverage- may require a slight strategic adjustment.

I myself have, on many occasions, facilitated meetings where civil society processes have been questioned. The NCA 'governance process- is being disputed, with the Chairman-s 'legitimacy- having been challenged on several occasions. But that is the point - the mark of a good democracy is the extent to which citizens can question processes. So if both Morgan Tsvangirayi and Arthur Mutambara have requested us to keep an eye on COPAC - we may hate the process, but we have to support them since we like what they stand for.

So, what alternative does NCA propose? Yes, they should go ahead and organise a parallel process, we will support them too, so that at the end of the year, we, the citizens, can compare the two, three or four 'versions- before we make up our minds. For crying out loud I do not think the American Constitution was a 'nationwide- consultative process, yet it is one of the best in the world! So I would argue all day that unless NCA gives Zimbabweans a sustainable alternative - as in any free market - COPAC will limp along and eventually send people like me to villages to 'consult-. Before you know it, both MDC and ZANU-PF will be galvanising their 'huge- constituencies to say YES! and NCA will be rendered irrelevant. If I were NCA, I would get into the villages and help citizens answer questions, because it is important that MDC and ZANU-PF do not record questions whose answers are already 'there-. This is a possibility!

By now, civil society - NCA - should be in the villages preparing citizens to have a 'people-s answer- to constitutional questions. However, even if the NCA is correct that political parties will push for self-interest, I would rather we are in there to push for the people-s interest. That, in my opinion, is democracy and after all, I am part of progressive civil society too.

Mr. Ngwenya is President of the Coalition for Liberal Market Reforms in Zimbabwe and an associate of www.AfricanLiberty.org

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