People not government should draft constitution


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If Zimbabwe did not have a constitutional crisis as of February 18 when President Robert Mugabe told diplomats so, it definitely now has one on its hands unless the government quickly diffuses the situation.

Opposition parties together with the National Constitutional Assembly which groups a number of civic organisations and the National Convention for Change have rejected the proposal of a Presidential Commission of Inquiry into the constitution of Zimbabwe arguing that any new constitution for the country should be drafted by the people of Zimbabwe and not the government or the president.

In a statement issued the same day President Mugabe was meeting diplomats, the groups argued that governments, no matter how popular, come and go, but the people remain. It is them who should decide on the constitution, both in terms of the process of making it and its content.

The statement was signed by representatives of the National Constitutional Assembly, the Zimbabwe Congress of Trade Unions, United Parties, Zimbabwe Labour Party, Democratic Party, the Forum for Democracy in Zimbabwe, ZANU (Ndonga), Forum Party, Institute for Freedom, the Zimbabwe Union of Democrats and Imbovane Yamahlabezulu.

“We do not believe nor accept that ZANU-PF as a political party or the government has the right to unilaterally determine the process by which or through which a new constitution of Zimbabwe is to be made.

“We believe that a constitution can only be as good as the process through which it is created and thus the process for creating the constitution is as important as the constitution to which it gives birth,” the statement said.

“Furthermore, the process itself must be legitimate, transparent and accepted by all the stakeholders. Accordingly a process dictated by either the government or the ruling party or both cannot lead to a legitimate and democratic Zimbabwean constitution nor can the process itself be regarded as legitimate.”

The statement further said: “We strongly believe that the process through which the constitution has to be remade has to have the support of all the stakeholders and it can only have that support if it has been negotiated by and agreed to by those stakeholders.

“The route of the commission has not been negotiated or agreed to by all the stakeholders. It is a government or ZANU-PF idea which has numerous flaws which lead to an illegitimate constitution.

“The process of constitution making, which is a reassertion of power by the people is the ultimate and most important expression of the sovereignty of the people and (is) in many respects even more important that the periodic elections. Thus, the constitution making process rightly belongs to the people and it is they who must determine that process.”

Among the major flaws in the proposed Presidential Commission of Inquiry, headed by Minister without Portfolio, Eddison Zvobgo who is also the ruling party’s legal secretary, the group argues, is that a commission set up under the Commissions of Inquiry Act, is a presidential commission answerable to the President in all respects.

As such it makes recommendations to him which he can accept or reject or modify as he deems fit. Such a constitution therefore remains legally and politically reversible and is subject to rejection by the government.

“In short, the Commissions of Inquiry route to making the constitution would be hostage to presidential powers. This is totally unacceptable to us,” the group says.

“We demand a constitution making process which is legally and politically irreversible and whose result is not subject to modification or rejection by any person or group other than the people themselves through a referendum.

“There must be created a new and agreed legal framework for making our constitution. This legal framework must guarantee the irreversibility of the process and that the will of the people will be respected by all and not therefore (be) subject to any modifications or veto.

“We take it as axiomatic and trite that the process agreed to must and will guarantee full public participation, transparency, openness and inclusiveness.”

To implement this, the group says, a national conference which will agree on and define the process of drafting the new constitutional must be convened and must include all political parties and civil organisations.

The coming together of opposition parties, and civic organisations has literally put a spanner into the works of ZANU-PF which all along has been arguing that as the elected representatives of the people it has the sole prerogative of drafting the new constitution and was inviting interested parties to participate.

The group argues that while on the face of it, the ZANU-PF route purports to acknowledge the supremacy of the people, it appears to proceed on the mistaken belief that the people only have to contribute to the content of the constitution and not the process leading to it.

It argues that the process is inseparable from the content and as such it must be negotiated by and agreed to by all stakeholders or alternatively, people should be allowed to elect their representatives to make the constitution.

According to political analysts, delay in reaching an agreement on the way forward could result in a delay of next year’s general elections as it is now obvious that these elections cannot be held under the present constitution.

“People now firmly believe that the 1995 parliamentary elections and the 1996 presidential elections were the last under the current unhealthy constitution,” one political analyst commented.

“It would be very difficult to convince them otherwise because even at ZANU-PF’s own consultative meetings in Mutare in 1997 and in Gweru in 1998, members of the party affirmed the need for a new constitution.

“The Parliamentary Reform Committee which toured the entire country has reports and reports indicating that people are not happy with the present constitution. So the nation is essentially agreed that there should be no further delay in instituting a new constitution.”

But the problem is that having been “mandated” by the people, ZANU-PF might want to take the lead and report back to the people before the new constitution is implemented and might want to wait for its party congress due this year.

This could delay the general elections in the sense that if a new constitution is adopted, there may be need for new constituencies, a new delimitation commission and a new electoral supervisory commission. And of course, there will be a need to register voters.

“The possibility of elections being held in 2001 and 2002 is very real unless people work quickly on the new constitution and also put in transitional arrangements which could allow the present constituencies to remain,” the political analyst said.

“But there is really no reason to delay the elections beyond 2000 because it is possible to work on a new constitution within the one year remaining to normal election period.”

The analyst said any representative team tasked to work on the new constitution could come up with one in six to eight months because the political will to have a new constitution existed among the people.

“Whether it exists among the politicians, among the ruling elite, is another matter. But among the people it certainly does exist.”

The analyst said if the ruling party tried to hold the elections under the existing constitution, civil society and opposition parties would make these elections impossible because there is no way ZANU-PF would lose those elections.

“Under the present constitution, even if ZANU-PF doesn’t campaign a single day it will still win because it will just rig the elections. There are too many loopholes and ZANU-PF has used them in the past. It will use them persistently for survival,” he said.

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Charles Rukuni
The Insider is a political and business bulletin about Zimbabwe, edited by Charles Rukuni. Founded in 1990, it was a printed 12-page subscription only newsletter until 2003 when Zimbabwe's hyper-inflation made it impossible to continue printing.

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