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Muleya-s 'intelligent ignorance- on Constitution making
Rejoice Ngwenya
May 21, 2012

The article entitled "COPAC process a national disaster" in the last edition of The Independent by award-winning editor Dumisani Muleya begs microscopic scrutiny. It leaves vast swathes of gullible citizenry misinformed and confused. Fortunately unlike the puerile verbosity spewed from 'learned- critics, Muleya proves his pedigree by refraining from insults.

As a liberal political consultant, I represent in COPAC constituents who believe in freedom, equity, justice and fairness. My history of constitution-making dates back to the days of the Morgan Tsvangirayi-led NCA and Professor Jonathan Moyo-s Constitutional Commission of the 1998/9 era. In both cases, I was an emissary of the late Luphi Mushayakarara-s liberal Institute for the Advancement of Freedom. Am no politician per se, yet a product of civil society - perhaps justifying Muleya-s unique label of "surrogate civic groups . . . in service of partisan political agendas"!

My point: "Partisan interventions, like the one we have from ZANU PF and other stakeholders" are actually helpful. They train us how to manage life-s idiosyncrasies! National constitution-making is a political process - inspired by citizens, managed by institutions and legitimised by Parliament. One of the greatest 'freedom charters- - the American Constitution - was not conceived by labour groups, churches and media associations, but politicians "who had studied law, had served in colonial or state legislatures, or had been in the Congress". It matters not who and to what extent is embroiled in the process, a constitution ends up some 'act- of Parliament. Muleya-s assertion that "If COPAC was guided by best practices in Africa and the rest of the world right from the start all these problems could have been avoided" is simplistic. At COPAC, I have hosted experts from South Africa, Ghana, Kenya and Namibia. Even as recent as 6 May 2012, I was part of a COPAC delegation to resurgent Tanzania invited to exchange experiences with that country-s new constitution-making body.

As a COPAC rapporteur, I have already shared with politicians content on fifteen African constitutions, including our very own Constitutional Commission, the NCA and Kariba drafts. Unless if high-profile citizens like Dr Alex Magaisa, Josphat Tshuma, Useni Sibanda and Kucaca Phulu have an affinity with "incompetence, shoddiness and confusion", then Muleya has to shun unfair collective condemnation. Kenyan delegates emphasised constitution-making as a political process. They also [unfairly] referred to civil society as habitually disruptive, unreliable and deceitful!

Their point: "those involved are not genuinely motivated by the idea of making a new constitution to serve the national interest but by expedient designs" is Muleya-s alternative way of saying everyone has legitimated entrenched interests in national constitutions. Without demeaning NCA or ZCTU 'governance credibility-, their motives for refusing to participate in the COPAC-led process are purely selfish. Great, Zimbabwe is a [constitutional] democracy. But for Muleya to argue that COPAC is not credible as it is "inherently unrepresentative and is dominated by politicians" is an attempt at convincing skeptics that both NCA and ZCTU are genetically 'representative and non political-. Civil society is sectoral by design - some, like Crisis Coalition, Lawyers for Human Rights, Zimbabwe Elections Support Network - are in 'democratisation- but not necessarily partisan. At COPAC, I analysed submissions from no less than fifty NGO entities, including the highly entrepreneurial Business Council of Zimbabwe. If Muleya implies that Cephas Zinhumwe-s NANGO, and Farai Mukuta-s NASCOH do not represent Zimbabwe-s "progressive civil society groups", then his assertion "three parties resisted the idea of a democratic constitution-making process driven by openness and popular participation, opting for a dubious alternative" is by and large 'intelligent ignorance-. For all intents and purposes, I would not for once believe current leadership at NCA is so 'representative- as to warrant a slot in the constitution-making hall of fame. In my world, good corporate governance is by example!

Conflation of moral legitimacy and partisan enthusiasm breeds what Muleya calls "a source of acrimonious dispute and contest". Even in international interventionism e.g. the United Nations missions in Sudan and Syria where partisan interests met legitimate demands, things go wrong. Zimbabwean NGOs have themselves been 'breathing fire and brimstone- on the vices of constricted, repulsive media laws since 2000. If Muleya-s activism in MISA and ZUJ was marked with 'competence and proficiency-, wouldn-t these laws be repealed by now?

I conclude that "legal instruments and philosophical approach" "organisational structure"; "openness and popular participation"; "strong mass support for constitutional reform and change" may be inadequate at COPAC. But to label the process "a national disaster" smacks of blind sensationalism.

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