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you should vote yes for Copac draft
February 15, 2013
I have been
asked to write an opinion on why the people of Zimbabwe should vote
in favour of the Copac draft
I must from
the outset declare my interest: I was a participant in the constitution-making
process as a technical advisor to the MDC-T team. I am now an
advisor to the Prime Minister of Zimbabwe, Morgan Tsvangirai.
In the next
few weeks Zimbabweans will find themselves at a critical juncture
in the course of their nation-s history. They will be asked
to choose whether to vote "Yes or "No" on the
Copac draft constitution.
There is no
middle ground, unless one elects to abstain from the referendum.
It is an historical
moment because for the second time in just over a decade, Zimbabweans
are being asked to vote on whether they want the relevant draft
to be the supreme law of the land. The first time such a question
was a put before them, they resoundingly rejected the Constitutional
Commission draft in 2000.
the current formal process has taken the better part of three years,
in its totality this is the culmination of more than a decade of
struggle for a new constitution.
was mainly championed from the late 1990s by the National
Constitutional Assembly (NCA) and later by the MDC, itself a
political party whose DNA is traceable to the NCA. It is therefore
a moment to pay tribute to all those who have fought for a new constitutional
If adopted the
new constitution will be no mean achievement.
While the current
draft may not be perfect, it is important to always look at it in
the context of the bigger picture. A constitution speaks to power
and power is inherently political.
is therefore an intensely political process, which invariably has
the imprint of political players, among other stakeholders.
No doubt the
content of the Copac draft will be the subject of much commentary
and academic treatises, presently and in years to come. The courts
will be called upon to interpret its clauses and these judicial
interpretations will also be subject to much scrutiny.
I have no doubt
that some deficiencies will be identified and that parliament and
the people will be seized with the task of making corrections to
challenges notwithstanding, I believe there is much in its favour
that must persuade the people to vote for the adoption of the Copac
draft at the referendum. I will deal with the content later but
the bigger picture refers to the place of the constitution in the
development of democracy in this country.
have waged a peaceful and non-violent struggle to change the manner
in which their country is governed. For the first time in 2008,
an electoral defeat that could not be ignored - locally,
regionally or internationally.
were denied the opportunity to claim and exercise their electoral
victory - the result being the compromise in the form of the
Agreement (GPA), under which the inclusive government was established,
the people managed to once again place constitutional reform on
the political agenda.
by the "No" vote in the 2000 referendum, Zanu PF had
thrown a tantrum and abandoned constitutional reform as a non-issue.
The MDC consistently fought for a new constitution and the fact
that the process has taken place and that the draft constitution
has been achieved is down to MDC-s patience, persistence and
resilience of the people.
I will highlight
the key features that I find persuasive:
Since at its
core a constitution deals with the relationship between the state
and the individual and society at large, it must ensure that those
who are vested with the power to govern are limited and that those
who are governed have their fundamental freedoms protected from
intrusion. The Copac draft does a far better job than the current
constitution in both respects.
The Copac draft
specifies in clear terms that both executive and legislative powers
are derived from the people of Zimbabwe. The executive and parliament
only exercise these powers at the pleasure of the people who being
the primary source of power, are the ultimate principals.
In order to
limit the abuse of state power, it is distributed among the three
arms of the state, namely the executive, parliament and the judiciary.
The principle of checks and balances, under which the powers of
one arm of the state are checked and balanced by one or more of
the other arms, is a critical part of the draft constitution.
of term limits
limitations on power are also evident in the principle of term limits
that will become a prominent feature of the constitution. Hitherto,
the principle of term limits has been conspicuous by its absence
in the constitution and Zimbabwe-s political culture.
The Copac draft
also represents a departure from militarism towards constitutionalism
- a significant movement from politicisation of state institutions
that should otherwise be neutral, apolitical and non-partisan. Key
sectors in this regard include the security services and the civil
The Copac draft
makes it very clear that the defence, police, intelligence, correctional
services and the civil service must be politically non-partisan
and must serve the national interest without the constraints of
bill of rights
The Bill of
Rights is probably one of the most persuasive aspects of the Copac
draft, although some clauses could have been improved. These challenges
notwithstanding, the Bill of Rights is conspicuous by its wide-ranging
character - for the first time covering not only civil and
political rights but also providing in good detail for socio-economic
rights such as the right to education, health, food and water, environment,
constitution has always been criticised for its failure to account
for these socio-economic rights and the Copac draft corrects this
Civil and political
rights, such as the freedom of expression, freedom of assembly,
right to personal liberty, etc have been expanded and written in
more specific terms with very minimal claw-backs. The rights of
arrested and accused persons are extensively articulated in precise
terms, while new additions are the right of access to information,
and for the first time the freedom of the media is provided for
in the new constitution.
most significant feature of the Copac draft is its sensitivity to
issues of gender equality and equity. Not only is the state obliged
to fulfil the objective of gender equality, the Bill of Rights and
the election rules go a long way to advance the cause of women who
have long been saddled with constraints arising from custom and
tradition that privileges patriarchy.
The Bill of
Rights specifies the rights of women, including the rights to equal
treatment, equal pay, receive at least three months paid maternity
leave, equal citizenship rights, protection against domestic violence,
equal opportunities, custody and guardianship of children, and all
laws, customs and cultural practices that violate women-s
rights are unconstitutional.
In the political
field, 60 seats in the parliament are reserved exclusively for women
and where seats are allocated on the basis of proportional representation,
such as in the senate, a method of selection that favours women
candidates is provided for.
The Copac draft
protects from erosion the rights of persons who are citizens by
birth. Parliament has no power to prohibit dual citizenship in respect
of citizens by birth.
It is important
to note that the Copac draft has an expanded definition of citizenship
by birth to include persons who are born outside Zimbabwe where
one of the parents is a Zimbabwean citizen. This means that persons
who may have been regarded as citizens by descent under the current
may actually qualify as citizens by birth if they satisfy the conditions.
must be emphasised that even in respect of citizens by descent or
by registration, the Copac draft does not specifically prohibit
dual citizenship. Finally, the Copac draft guarantees restoration
of citizenship by birth to persons born in Zimbabwe who may have
previously lost their citizenship on the basis of laws that affected
the so-called aliens.
By far the
greatest transformation to the structure of governance is contained
in the provisions for devolution of power. This is a radical departure
from the highly-centralised governance structure under the current
constitution. It ensures that people will be able to govern themselves
more effectively at the local level.
respond to widespread calls for the distribution of power across
the state to enable local governance and prevent marginalisation.
Dr Magaisa is
the secretary for legal affairs in the Office of the Prime Minister
and was the MDC-T technical expert during the constitution-making
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