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New Constitution-making process - Index of articles
The
NO Vote in defense of history
Blessing
Vava
January 30, 2013
http://blevava.blogspot.com/2013/01/the-no-vote-is-in-defense-of-history.html
Abstract
A constitution
is the highest law of the land, which defines and limits the powers
of government and its various branches, vis-à-vis each other,
and the people, and provides a strong foundation for a state based
on the rule of law. For the UN, the term constitution-making covers
both the process of drafting and substance of a new constitution,
or reforms of an existing constitution.
Both process and substance are critical for the success of constitution-making.
The design of a constitution and its process of development can
play an important role in peaceful political transitions and post-conflict
peace building. It can also play a critical prevention role. Constitution-making
presents moments of great opportunity to create a common vision
of the future of a state, the results of which can have a profound
and lasting impact on peace and stability. - United Nations Rule
of Law Coordination and Resource Group
Zimbabwe
The Parliament
select committee finally agreed and produced a draft
constitution with the aid of their principals in the shaky coalition
government to end years of uncertainty to a process that was
neither people-driven nor democratic rather an elite arrangement
by those in the corridors on power. The draft is part of the requirements
of Article 6 of the 25 September 2008 agreement
by the three parties, however, a section fearlessly contested by
the NCA. It
is this Article 6 that mandated the parties to come up with a committee
of parliamentarians to spearhead the process of writing a new charter
for Zimbabwe.
Principles
and Process vs. Political Greed
The NCA argued
that the involvement of those in power
to drive the process was not only going to compromise the contents
of the document but also the full active participation of the citizenry
in this important process in the history of this country. Fully
aware that the process of making a constitution is as important
as the content we remained skeptical about the whole arrangement.
This position may have been largely misunderstood or deliberately
shelved. The people driven constitution approach is centered on
national ownership and support for inclusive, participatory and
transparent processes.
Support is to
be tailored to the specific citizens context (often referring to
historical and current political epochs) and is drawn from a wide
range of expertise both within and outside the government system
with its independence uncompromised to ensure access to international
and comparative best practice and that the voice of the voiceless
is protected. Advance planning is required for the creation and
implementation of public information and civic education campaign,
public consultation process and the securing of funds, human and
material resources. A structured (and time intensive) national dialogue
or consultation process that feeds back the views of the people
to the decision makers involved in the drafting and debating of
the constitution is an essential element of an inclusive, participatory
and transparent process.
The NCA encourages
constitutional approaches that directly incorporate and make supreme
international human rights standards, including an independent and
impartial judiciary, as a strong foundation for the rule of law.
The setting up of institutions, structures and mechanisms that promote
adequate follow-up to ensure implementation of the constitution
or constitutional reforms once adopted. This is where COPAC failed
the test. It was a commission appointed by their party principals,
who ultimately had the final say over what went into its Draft Constitution.
After purporting to have collected the views of the people COPAC
during the outreach exercise what finally came out was a negotiated
constitution containing the views of the elite class in government
(Kariba Draft
style and majority of the content).
The people
driven constitution discourse was simple yet so cumbersome in the
views of the oligarchy - citizens participation in the making of
a constitution will ensure that their wishes are safe guarded and
sacrosanct in the new constitution
History has
it on record that we argued in 2000 that the people must determine
a process of constitution - making which they can dominate.
It was on the strong belief that, the principle of democracy is
fully entrenched as people will not, thereafter; allow any future
government to change the constitution as it wishes.
After producing
two different drafts, one in March and another one in July 2012,
it became clear that the final product was going to be nothing but
an illegitimate and fraudulent document paraded to the nation as
a democratic constitution yet in essence is meant to protect the
power of the ruling elites. One of the most contentious and controversial
sections which resultantly led to the rejection of the Chidyausiku
Draft is the Executive presidency, which the proposed draft has
brought back.
- The proposed
Draft still provides for an executive president with almost similar
powers to the Lancaster Constitution. The President is endowed
with unchecked totalitarian powers such as appointing and dismissing
most public figures, exercising the prerogative of mercy, dissolving
Parliament, declaring a state of emergency.
- Chapter
5, Section 88, the president is still the Head of State and Government
and Commander in-Chief of the Defence forces. It would have been
prudent for the draft to create to create a post for prime minister
to act as Head of Government a more democratic arrangement suitable
for a post conflict nation and would provide for intra-accountability
in the executive.
- The proposed
charter is still silent on the retirement age limit for the president.
The president still enjoys immunity for crimes committed in his/her
personal capacity. Section 98(1)While in office, the President
is not liable to civil or criminal proceedings in any court for
things done or omitted to be done in his/her personal capacity.
- Again on
appointments, this draft gives the president powers to appoint
an unlimited number of cabinet ministers, this clause is open
to abuse and that-s the reason why currently we have a bloated
cabinet thereby burdening the treasury in a small country like
ours. Past and present ministers are known for non delivery and
only vocal on 'benefits-
- On accountability-this
draft provides that vice Presidents, Ministers and their deputies
are accountable to the President and not parliament [Section 107
(1)] Subject to this constitution, every Vice President, Minister
and Deputy Minister is accountable, collectively and individually,
to the President for the performance of his or her functions.
This system is open to abuse and will not allow transparency and
proper accountability of ministers in the execution of their duties.
Yet modern democracies are characterized by shared decision making
by the legislative and executive branches allowing for both horizontal
and vertical accountability.
Going through
Chapter 6 of the draft left me in shock on some of the provisions
herein. For a draft that is essentially a product of members of
parliament critics were however proved correct. Zimbabweans have
always been against a big parliament as it has become a mere talk
show and a burden to the fiscus.
- Like the
Chidyausiku Draft which proposed a big parliament, the current
draft provides for 270 legislators. The figure is not only shocking
but a clear show of extravagance and accommodation for the ruling
elites to create jobs for the boys as parliament has since become
an employment bureau.
- The draft
fails to set term limits for members of parliament and one can
be an MP for life.
- Parliament
is weak, it cannot pass a vote of no confidence in a Minister.
If new legislatures are going to have a central role in a nation-s
governance a democratic constitution provides for a relative balance
of power between the legislative and executive branches
It is also imperative
to note that this draft allows for the amendment of the constitution
by a two thirds majority in parliament Section 328 (5). This is
how flawed this draft is in that any party with a two thirds majority
that time can change the constitution at will.
In practice
the citizens voice is silenced, a nation that deems itself in a
transition to democracy should be ready to create provisions for
citizens to participate in a referendum to amend a constitution.
Any proposed amendments to the constitution must be brought to a
referendum to allow citizens to participate as this concept of two
thirds supermajority is prone to political manipulations by ruling
parties in infant democracies. With these few submission I have
made my mind to vote NO in the referendum and I encourage fellow
citizens to reject this daft dangerous draft.
It is a negation
to the democratic principles of governance and should be rejected
resoundingly to send a clear message to those who want to impose
a bad document on Zimbabweans. A rejection does not mean we do not
want a constitution but is a clear a message that we want a good
constitution that is authored by the people for the people and not
a few individuals.
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