By Blessing Vava
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
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.
· 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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