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Critique of the draft constitution
Jacob F. Mundenda and G. Masimirembwa
December 20, 2011

View this article on The Herald website

1. THE MANDATE

1.1 The Drafters record their mandate from the Co-Chairs as follows: "To provide you with a draft constitution consistent with the agreed principles set out in your documents headed "Draft Constitutional Principles" and "List of Proposed Constitutional Issues, Rainbow Towers Harare", as well as any additional principles and issues which you agree upon during the 35-day drafting period;

To provide you with a written explanation of the provisions contained in the draft constitution that we produce, to the extent that an explanation is necessary to understand them;

To fill any gaps in your agreed principles so that the draft constitution that we produce is a complete document covering all issues that a constitution for Zimbabwe should cover;

To inform you if we think that any of the agreed principles are inconsistent with each other, or are inconsistent with international law to which Zimbabwe is a party, or for any other reason are inappropriate for inclusion in a constitution."

2. History of the current Zimbabwe's Constitution making process

2.1 The constitution making process which should result in a new constitution for Zimbabwe is a people driven process. COPAC successfully conducted a country wide outreach programme in which the people of Zimbabwe in one thousand nine hundred and fifty (1 950) wards expressed their views on the following thematic areas:

1.Preamble
2.Founding principles
3.Citizenship
4.Bill of rights
5.Women and gender
6.Youth
7.Disabled
8.Media
9.War veterans
10.Land
11.Empowerment
12.Environment
13.Natural resources
14.Labour
15.Religion
16.Systems of government
17.Arms of state
18.Electoral systems
19.Independent public offices
20.Independent commissions
21.Executive commissions
22.Public finance
23.Central bank
24.Traditional leaders
25.Languages, arts and culture
26.Transitional mechanisms

The results of the outreach programme were consolidated into a National Report.

2.2 The technical teams of the three main political parties and traditional leaders used the National Report for the purpose of extracting constitutional issues there from. This led to the production of the document titled "List Of Proposed Constitutional Issues, Rainbow Towers Harare."

However, the List of proposed Constitutional Issues are bare bones without the responses of the people expressed in frequencies being recorded.

One would have to refer to the National Report to get the frequencies or the score in respect of each constitutional issue or question that was posed to the people of Zimbabwe. Thus, to get the preponderant views of the people of Zimbabwe on the listed constitutional issues, one must have regard to the National Report.

The National Report read as a whole enables a drafter to understand the history of Zimbabwe, the present, the future, the joys and tribulations and the values that the people of Zimbabwe cherish, seek to protect and promote.

In short, without the National Report or any of the source documents from ward level to district level, provincial level and finally the national report, a drafter will not be drafting a people driven constitution but a constitution with values of his/her own characterised by reference to constitutions of other countries he/she admires.

And yet Zimbabwe is in the unique position of having an opportunity to come up with a constitution truly based on the will of the people as is reflected in both the qualitative and quantitative aspects of the national report.

When we read the drafters mandate, we immediately realised that there is no mention of either the ward, district, provincial or national reports compiled during the constitution making outreach programme.

The outreach programme contains clear views from the people regarding the constitutional issues they want incorporated into the Constitution by the drafters. The reports contain both quantitative and qualitative analysis of issues/views.

It became clear to us that the Draft Constitution that is being drafted by the drafters is not on the basis of an analysis and appreciation of both the quantitative and qualitative aspects of the people's views. To us, this is tantamount to throwing away the views of the people and writing a constitution grounded not on the experiences, values and aspirations of the people but on the idiosyncrasies of the drafters. This is a betrayal of the sovereign will and power of the people.

Hon Mangwana advised us that the drafters were availed with the national report. However, the drafters did not mention this in the draft constitution papers they have submitted suggesting that they did not make reference to the national report but only made reference to the Draft Constitutional Principles and the List of Proposed Constitutional Issues. This renders the whole drafting process illegitimate, for the legitimacy of the new constitution of Zimbabwe must primarily be based on the will of the people as reflected in the national report.

3. THE DRAFT CLAUSES

3.1 Clause 1:

The drafters appear to disown the description of Zimbabwe as "Zimbabwe is one sovereign and democratic republic" as expressed by the people during the outreach and in the Kariba Draft, but for strange reasons prefer the description "The Republic of Zimbabwe." In fact they even seem not to be interested in calling the country "the Republic of Zimbabwe" as they conclude the clause by writing "And Zimbabwe is not in fact known as the Republic of Zimbabwe."

The drafters surprisingly wonder what the word "one" adds to the definition of "Zimbabwe". They say they are not able to work out what it really means.

Quite clearly the drafters appear to be strangers to the values of the people of Zimbabwe. The "one" emphasises that Zimbabwe is a Unitary state. It expresses the oneness of the country. Indeed the South African constitution captures the oneness of the Republic of South Africa in Clause 1 in the following terms: "The Republic of South Africa is one, sovereign, democratic state . . . "

They say it is unnecessary to add that Zimbabwe is "democratic". This strange view is not consistent with the nature of the Zimbabwean state. As already demonstrated above, the South African constitution describes the Republic of South Africa as being "democratic".

4.Clause 3:

4.1 The drafters are not giving due status to Zimbabwe's liberation struggle.

Zimbabwe gained independence after a protracted liberation struggle in which thousands of its gallant sons and daughters perished and others were maimed. The liberation struggle is indeed the foundation of modern day Zimbabwe and must be placed in its correct historical and ideological context.

4.2 Reading Clause 3 of the narrative together with the Founding Values and Principles, in particular 3 (h), it is clear that the drafters want to negate the oneness of the people of Zimbabwe. What are racial minorities? What are political minorities, etc?

4.3 Clause 3 (k) mentions "the devolution of governmental power to provinces and other appropriate levels." This, again, is a negation of the country's oneness. The drafters emphasise devolution, whereas the emphasis should be on a unitary state with devolution being a species of decentralisation and de-congestion. Zimbabwe is a unitary state decentralising functions and services to lower levels of government.

4.4 The national report records that the people of Zimbabwe want a unitary state. Therefore, devolution has to be seen in the context of the underlining imperative of a unitary state.

5. Clause 4:

5.1 National Territory

This clause, with respect, does not define anything. Reference to internationally recognised borders is important.
6. Clause 5:

6.1 National Flag, National Anthem, public Seal and Coat of Arms

These must be in the Constitution - in a schedule.

7. Clause 6:

7.1 Languages

With respect to the drafters, we fail to understand what their role is. Is it to write a Constitution that captures the values of the people of Zimbabwe or to write what they think? The people of Zimbabwe were emphatic during outreach that they want all languages spoken in Zimbabwe made official.

The wish of the people of Zimbabwe is not without precedent. The South African Constitution, section 6 (1) thereof, lists the official languages of South Africa - eleven (11) of them. Once again, this is a clear demonstration that the drafters are working off at a tangent vis-à-vis the will of the people.

8. Clause 7:

8.1 Promotion of public awareness of Constitution

The drafters say that public awareness of this Constitution must be promoted by "translating it into the languages that are used by substantial numbers of people in Zimbabwe . . . "What does substantial mean? Surely the translation must be into all official languages/national languages.

CHAPTER 2

9. National Objectives

9.1 Ad para 2.3 (1) (e) development and empowerment

2 (1) (e)
It reads "(1) The State and government institutions and agencies at every level must endeavour to facilitate rapid and equitable development, and in particular must take measures to redress imbalances resulting from past practices and policies."

The drafters seem to shy away from clearly stating what the past practices and policies were. The past practices and policies of racial discrimination, deprivation of the majority, colonial domination etc. must be spelt out. Article 23 (2) of the Namibian constitution is a good example of how past discriminatory practices and policies of a colonial regime ought to be captured in drafting a constitution.

9.2 2.12

War Veterans

The definition is wholly inadequate. The Chapter is titled Founding Fathers/Mothers, Nationalists, Heroes/Heroines and War Veterans. The drafters only addressed the issue of the status of the liberators of this country. Their welfare and entitlement were not addressed.

CHAPTER 3

10. Citizenship

10.1 Methods of acquiring citizenship

Combining citizenship by birth and descent to mean citizenship by birth is mischievous and has clear ulterior motives of opening floodgates for acquisition of Zimbabwean citizenship by birth and descent through grandparents. During outreach, people were asked the manner in which a person acquires Zimbabwean citizenship. The response was by birth; by descent etc. The people did not combine the two to mean "by birth". So the difference must be maintained.

10.2 Dual citizenship

The people of Zimbabwe rejected dual citizenship. The attempt by the drafters to sneak it through the backdoor must be rejected. Uganda is an example of a country with mono-citizenship.

10.3 3.1 (2) Zimbabwean citizenship

It reads: (2) "It is the duty of every Zimbabwean citizen -

(c) to the best of their ability, to defend Zimbabwe in time of need."

How is this possible when a dual citizen's two countries are at war and both call on him/her to defend his/her country? Which one is his/her country? Citizenship is about loyalty to a country, not a commercial transaction, hence the rejection of dual citizenship by the people.

11. Clause 3.2 (3)

11.1 Foundlings

Whilst the provision is progressive, there is need for it to provide for an investigation to be carried out before the child is presumed Zimbabwean.

12. Clause 3.3

12.1 Rights of citizens by birth (dual citizenship)

This was rejected by the people.

CHAPTER 4

13. Draft constitution: Chapter 4

13.1 Part 1: Specific Human Rights and Freedoms

Clause 4.1 Right to life

Death Penalty

Yet again the drafters have ignored the will of the people. To proscribe the death penalty without regard to the people's will to retain it is tantamount to defiance of the will of the people.

13.2 Clause 4.6

Equality and non-discrimination

The drafters want to sneak in homosexuality and lesbianism through the backdoor. Yet again the will of the people is being subverted. To prohibit discrimination on the grounds of "natural difference or condition" is to condone or allow homosexuality or lesbianism which have been emphatically rejected by the people of Zimbabwe.

13.3 Clause 4.19 Property rights

The drafters do not recognise that the land question is a constitutional issue. Yet land has been at the centre of the contestation between Zimbabwe and Britain since the land was forcibly taken from our fore bearers by colonialists.
In the infamous 1919 AC In Re Southern Rhodesia case, the Privy Council ruled that Africans have no concept of ownership of land and through that ruling constitutionally justified the colonisation of Zimbabwe.

For the drafters, who must be constitutional lawyers, to avoid the land issue proves one point - they are the wrong persons to draft a constitution for the people of Zimbabwe.

When over 84% of the people who participated in the outreach programme said land is a constitutional issue, it will be a betrayal of the highest order if the land issue were to be left unresolved by the constitution. There is a definite need for a constitutional clause under the Bill of Rights which asserts Zimbabweans' ownership of theirs land and natural resources.

The drafters wrote "The new Constitution cannot solve the land issue in Zimbabwe. It can however provide a mechanism - we suggest a Land Tenure Act."

The drafters have failed to address Draft Constitutional Principle No. 5 which reads "The constitution should contain mechanisms of redressing colonial imbalances in the distribution of natural resources including land."

On this and the various other issues we raised, the drafters are not serving the people of Zimbabwe. In fact, they pose a danger to the constitutional stability of the country.

i. In the light of the forgoing, we recommend that there be a review of the competence and ideological orientation of the drafters, in particular the one seconded by ZANU (PF).

ii. The failure of the drafters to take cognisance of the people's views disqualifies them as reliable and competent drafters of the envisaged historic constitution.

iii. Consequently, the four chapters so drafted to date must stand PARKED to avoid the danger of upsetting the due process of our constitution making process.

iv. In this context, we are worried about the security of the Draft Constitution so far presented and in the future between the Principal Drafters and the three Co-Chairpersons as there are no security mechanisms to control their paper trail.

v. We recommend that the Select Committee must come up with detailed drafting instructions which must cover all the thematic areas which constitute the core of the drafting process. The views of the people are paramount. Without taking them into account the envisaged historic constitution will be a sham.

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