BATTLE lines around the stormy debate focusing on the constitution-making process are clearly drawn as preparations for elections next year gather momentum.
Starting last week, the Zimbabwe Independent began serialising articles written by MDC-T secretary-general and Finance minister Tendai Biti — who is a lawyer by profession — on the controversial constitution-making exercise.
Does it protect the people against imperial power?
The Copac draft deals with imperial power in four respects. The first is the creation and definition of citizenship that is broad and inclusive. Citizenship is acquired through birth, descent and registration.
The definition of citizenship by descent is wide and more importantly all citizens have equal rights. Another issue dealt with decisively is the question of citizenship in respect of third or fourth generation Zimbabweans born from great or grand parents that came from Sadc countries as immigrant workers, the so-called aliens from Nyasaland or Blantyre. The Copac draft now makes these so-called aliens citizens of Zimbabwe by birth.
The second and more decisive issue is a comprehensive Bill of Rights providing for both first generation and socio-economic rights. The Bill provides for exciting rights such as the right to personal security, the right to life, equality and non discrimination, the right to demonstrate and petition. In Article 4.7 the Bill provides for comprehensive rights for arrested and detained persons which are revolutionary in our law whilst in Article 4.24 it bestows comprehensive political rights on citizens.
With regards to rights to education and health, the state is obliged to provide a basic state-funded education and access of basic health services including reproductive health services.
The third and most important manner in which this constitution protects the people is by creating a democratic and accountable president. The mischief that we have lived with as Zimbabweans is that for the last 32 years this country has been run by an imperial president who has had more powers than the philanderer Henry the VIII. President Robert Mugabe has and still exercises such autocratic de facto and de jure powers that make many imperial presidents envious. He makes laws, appoints judges, appoints government and its officials, dissolves parliament willy-nilly and has absolute control of the securocrats.
The Copac draft creates an executive president who shares power with cabinet, who cannot make policy without cabinet, who does not substantively appoint judges, who cannot dissolve parliament, who cannot unilaterally declare war or a state of emergency. It creates a president that does not have immunity for any crimes or omissions committed during his or her term of office.
Furthermore, it creates a president and a cabinet that can be recalled by parliament.
This is a new concept for Zimbabwe and for Zanu PF. This is why the biggest cry from Zanu PF has been against this new democratic president.
The fourth manner in which this constitution protects the people is by creating a security service that is subordinate and subject to the constitution, parliament and an elected executive. That constitution even creates a public complaints body against the omissions and commissions of the security services which include the Central Intelligence Organisation (CIO). More importantly, security chiefs, like the president, are now subject to a limited tenure of office of two five-year terms. There are limited terms of offices for permanent secretaries, heads of parastatals and those heading government bodies.
Does it establish and protect a clear separation of powers and authority in the state structures?
Indeed, the Copac draft creates traditional organs of state power that is to say judiciary, legislature and executive.
However, unlike the current constitution, where one office and one individual totally subordinates the other chambers, the same is not the case. There is a judiciary consisting of a Constitutional Court, Supreme Court, High Court and other courts. Judges are appointed nominally by the president but only from a list provided by parliament following a process of public interviews. There is a legislature consisting of a Senate and the National Assembly.
Unlike the present position, the president does not have the power of unilaterally dissolving a parliament save when an election is due. The existence of executive commissions such a public service, police and correctional service commissions, which are more structured than now also reinforces this doctrine of separation of powers.
Does it create independent institutions, particularly those which create a bulwark against power and big government?
Yes it does. This constitution creates important institutions in our law which include an independent anti-corruption commission, auditor general, gender commission, human rights commission, media commission.
The most important commission is arguably the National Prosecuting Authority that is created to ensure that the prosecution of criminal justice is “de-Zanunised” and depoliticised. This is an important break with the past. It is thus not surprising why Zanu PF is fighting against this clause.
Another important commission is the National Peace and Reconciliation Commission which, among other things, will deal with our past and our future given the periods of hard and soft genocides we have seen in this country from Gukurahundi to the death of General Solomon Mujuru, just to mention a few.
Again not surprisingly, Zanu PF does not want this.
Does it articulate the developmental aspirations of the people?
Yes. Firstly, one of the founding principles of this constitution is that of equality and inclusivity. A nation cannot develop when other citizens are innocent bystanders and onlookers. By creating strong and clear provisions dealing with the issue of gender equality, the Copac draft makes women central players in our discourse. The gender provisions in this constitution even go farther than those in the South African constitution.
Secondly, by creating a devolved state, which now operates through the mediums of provincial and metropolitan councils, the Copac draft is recognising the right of communities to manage their affairs and to further their development.
— To be continued next week.