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New Constitution-making process - Index of articles
March 05, 2013
making process has revealed the utter contempt with which Zimbabwe's
politicians treat the electorate, from Operation Chimumumu of the
outreach programme, to insulting our intelligence by constantly
claiming that the document
they have presented as the proposed new constitution reflects
views, rather than the being result of inter-party negotiation,
and then allowing insufficient time for most people to consider
the substance of the draft.
one reject the draft simply to punish the politicians for this arrogance
and to demonstrate that the electorate refuses to be treated so
shoddily? On the other hand, if, regardless of the process which
produced it, a brilliant document has been prepared is one not being
churlish and shooting one's self in the foot by rejecting
the draft? Hardly. Even the proponents of a "yes" vote
concede that the document is a poor thing (but their own), the best
they could do under the circumstances. It is, we are told, nonetheless
"incremental progress" and we should thus vote "yes".
We have heard
this argument before. We were told that the Constitutional Commission's
draft of 2000 was progress and we should thus vote "yes".
But the people voted "no" because the draft did not
achieve that which they had set as their objective, to reduce the
vast powers of the President.
We were also
told to support the GPA
because, although the accord left Mugabe's vast powers intact,
it was the best that could be obtained under the circumstances,
was incremental progress and was the means by which the integrity
of the electoral process could be restored. A new constitution was
presented as one of the instruments by which this would be accomplished.
This being the
stated intention behind the constitution making process, the draft
should be rejected on this ground alone. Its provisions will do
nothing to restore the integrity of the electoral process. Certainly
it contains hopeful clauses stipulating that elections "must
be peaceful, free and fair, free from violence and other electoral
malpractices" and that "neither the security services
nor any of their members may, in the exercise of their functions
act in a partisan manner; further the interests of any political
party or cause; prejudice the lawful interests of any political
party or cause; or violate the fundamental rights and freedoms of
any person." But the constitution very deliberately fails
to include any remedy or steps that can be taken if there is no
compliance with these provisions. They are thus little more than
pretty window dressing designed to allow politicians to tell the
naïve that the draft is not all bad.
If the new constitution
was to address the issue of electoral integrity, then this was the
moment to attend to institutional reform, particularly the partisan
nature of the criminal justice process and security sector which
has played a key role in subverting democratic choice in the past.
The MDC politicians proudly tell those who have felt or fear the
double whammy of the combined operations of the Commissioner-General
of Police and Attorney-General, that this problem has now been addressed.
The Attorney-General will no longer be in charge of prosecutions.
This will now be done by a Prosecutor-General. They fail to mention
that the draft specifically provides that the current Attorney-General,
Johannes Tomana, will be the new Prosecutor-General, that the President
has the ultimate power to determine his successor in any event and
that Chihuri will remain in his post. Hence, rather than addressing
partisanship in the application of the criminal justice system,
the draft is carefully drawn to ensure that it continues. Similar
criticism can be directed at the problem of security sector governance.
To make the point, one need only take note of one of many adverse
provisions: while in democracies the operations of the intelligence
services are governed and regulated by statute, the draft again
specifically includes a clause to ensure that this does not happen
and allows the intelligence services to remain the unregulated plaything
of the President and to be used for party political purposes.
proponents either obfuscate these issues or ask us to focus on the
"incremental gains" reflected in the draft. The incremental
gains appear predominantly in the unquestionably greatly improved
Declaration of Rights. Its provisions are better for women. Gay,
lesbian, bi-sexual, transgender and inter-sex rights are also given
strong support, albeit not by name. There is improved freedom of
expression and the media etc.
gains" in the Declaration of Rights do nothing to encourage
a "yes" vote. They require an uncompromised and uncompromising
judiciary and legislative reform to be realised. Contrary to the
basic principle of the separation of powers, the draft ensures that
the head of the executive retains control over both the judiciary
and the legislature. Although there is an improved system of advertising
for positions and the public interview of candidates for judicial
office, if the President does not like the nominees that emerge
from the process, he can by-pass this process and select candidates
he finds more amenable. Similarly, the draft retains the President's
power over the legislature. Egregiously, under the present constitution
the legislature consists of Parliament and the President who has
the power to veto legislation. This is retained under the draft.
Certainly, a two-thirds majority in Parliament can override the
Presidential veto. But this is highly unlikely to happen in practice.
The President is elected at the same time as the Members of Parliament.
It is thus improbable that Parliament will comprise enough members
opposed to the President, or of a different party, to counter his
or her veto.
and "incremental gain" proponents also disingenuously
claim that once they win the elections they will amend the constitution
to attend to these problems. But any constitutional amendment will
require a two-thirds majority in favour in both Houses of Parliament.
The current political configuration suggests the neither party is
likely to be able to muster this majority. Hence, once the draft
is accepted, the constitution making chapter will be closed and
we will be stuck with a document that none regard as satisfactory
for the foreseeable future. Politicians from the winning party,
which ever that may be, are likely to be comfortable with the overweening
powers of the President, even if the electorate is not. A "no"
vote will keep the constitution making process alive, which might
then continue under more favourable conditions, with a different
balance of political power, at a later date. The GPA only requires
that there be a referendum on the constitution before the elections
- not that a new constitution be in place by then. So why
the rush to bring the constitution making process to an end?
The rush is
because the draft constitution provides a convenient fig leaf for
SADC's ineffectiveness and anaemic responses in the face of
ZANU PF's refusal to affect the reforms necessary for a credible
election. None of the essential reforms necessary for the integrity
of the electoral process have been implemented during the course
of the GNU. It also provides a convenient escape route for SADC,
facing yet another flawed election in Zimbabwe. SADC has already
started preparing the claim that although "not all"
the reforms provided for by the GPA were implemented at least the
election was conducted under a new constitution - an approach which
delights ZANU PF. From there will follow the non-sequitur, (based
on the off key refrain that a new constitution will protect the
integrity of the electoral process) that the vote substantially
reflects the will of the people and the poll is thus acceptable.
A "no" vote will strip away this fig leaf and close
this escape route for SADC. The narrow democratic space in which
the elections will undoubtedly be conducted will thus be there for
all to see.
of a "no" vote are thus readily apparent. It requires
one to peer very closely at the draft through thick rose tinted
glasses to discern any advantages accruing from a "yes"
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