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The Constitution-making process and the principals: The correct position
Douglas Togaraseyi Mwonzora
November 01, 2012

In his speech during the official opening of the Second All Stakeholders conference, President Mugabe castigated people who maintained that the current constitution making process was a parliamentary process. The President made similar remarks while addressing a luncheon hosted by the Minister for Local Government following the opening of Parliament in Harare.

Quite correctly the President reminded us that the Global Political Agreement was a product of the principals and that it is the principals who signed it.

But, the fact that one has authored an agreement or a law, can not be an excuse for the failure by that person follow that law or agreement. That is to say once one has concluded an agreement or a law then one is bound by that agreement or law until such time as the agreement or law is lawfully amended or changed. It follows that although the Principals signed the Global Political Agreement, they are now bound by the terms of that agreement and must follow it to the letter.

Over many years, the President has signed many bills including constitutional bills into law. The correct position is that as soon as the President has signed the bill into law he is bound by that law and must follow and obey it even though he be its author. Thus, the President may not violate POSA, AIPPA or Amendment 18 for example on the basis that he is part to it's making. In fact the hallmark of Robert Mugabe's presidency is to strive to be within the legal instruments that bind him. Whether he has succeeded or not is not the subject matter of this discussion.

To argue, as does Ambassador Chris Mutsvangwa, that the principals can do as they please with their Global Political Agreement is akin to say a mother can do as she pleases with her child including murder because she gave birth to him anyway.

This constitution making process is being undertaken in terms of the Global Political Agreement signed by the principals. Article 6 of that agreement provides for the appointment of a Select Committee of Parliament to spearhead the writing of the constitution. Pursuant to rule 157 of the Standing Orders and Rules of Parliament the Speaker of Parliament Hon. Lovemore Moyo announced the appointment of the Select Committee as a committee of parliament sometime in 2009. Unlike the Chidyausiku Commission, the Select Committee members did not take oath before the President which was an indication that it was not a committee or commission of the executive.

It is clear under article 6 of the Global Political Agreement that it is the Select Committee of Parliament that must produce the draft constitution and table same before the Second All Stakeholders Conference. After the conference, the Select Committee of Parliament must table the draft constitution and the accompanying report to the Parliament. After the referendum, Parliament must formally pass the draft into law. This law would however still require presidential assent.

From the foregoing it is very clear that the constitution making process is and was designed to be a parliamentary process. The intention of those who drafted the Global Political Agreement was clearly to make this process a parliamentary one. Some people may now find this a little inconvenient but the intention of the principals at the time of writing their agreement is clear.

This does not mean that the Principals have no role to play in the process. Fortunately the principals are members of the executive authority of Zimbabwe who must ensure compliance with the laws of Zimbabwe. Their role is to facilitate the smooth execution of this parliamentary task by those appointed to execute it. For example, during the First All Stakeholders Conference the principals intervened to stop the violence, mayhem and chaos that had been started by a faction of a political party. Thanks to their intervention, the conference was able to proceed the following day. Through the Minister for Finance, the principals have ensured provision of government funding of the process. During the Second All Stakeholders Conference, the principals facilitated the smooth transaction of the business of the conference by insisting on no violence, tolerance and need for peace during the conference and beyond.

Earlier on in the program, the Principals launched the outreach program preaching the language of peaceful coexistence. This was meant to ensure a smoother execution of the outreach program by the Parliamentary Select Committee.

After the submission of the report by Copac to parliament, the executive, through the Minister for Constitutional Affairs, will takeover the process to ensure the smooth conducting of the referendum.

From the foregoing it is clear that the role of the principals in this process is a facilitative one. This is different from a situation where the principals enter the arena and undertake the writing of the constitution themselves as they would do by negotiating the provisions of the draft.

Zimbabwe is a country which must respect the doctrine of separation of powers among the judiciary, the executive and the legislature. It remains the duty of parliament to make laws of the land and for the executive to ensure enforcement of same.

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