By Blessing Vava
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
|
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.
Nb* Should you use this
article, please acknowledge that it was first published www.blevava.blogspot.com.
