I HAVE been asked to write an opinion on why the people of Zimbabwe should vote in favour of the Copac draft constitution.
Opinion by Alex Magaisa
I must from the outset declare my interest: I was a participant in the constitution-making process as a technical advisor to the MDC-T team. I am now an advisor to the Prime Minister of Zimbabwe, Morgan Tsvangirai.
In the next few weeks Zimbabweans will find themselves at a critical juncture in the course of their nation’s history. They will be asked to choose whether to vote “Yes or “No” on the Copac draft constitution.
There is no middle ground, unless one elects to abstain from the referendum.
It is an historical moment because for the second time in just over a decade, Zimbabweans are being asked to vote on whether they want the relevant draft to be the supreme law of the land. The first time such a question was a put before them, they resoundingly rejected the Constitutional Commission draft in 2000.
Therefore, while the current formal process has taken the better part of three years, in its totality this is the culmination of more than a decade of struggle for a new constitution.
This struggle was mainly championed from the late 1990s by the National Constitutional Assembly (NCA) and later by the MDC, itself a political party whose DNA is traceable to the NCA. It is therefore a moment to pay tribute to all those who have fought for a new constitutional dispensation.
If adopted the new constitution will be no mean achievement.
While the current draft may not be perfect, it is important to always look at it in the context of the bigger picture. A constitution speaks to power and power is inherently political.
Constitution-making is therefore an intensely political process, which invariably has the imprint of political players, among other stakeholders.
No doubt the content of the Copac draft will be the subject of much commentary and academic treatises, presently and in years to come. The courts will be called upon to interpret its clauses and these judicial interpretations will also be subject to much scrutiny.
I have no doubt that some deficiencies will be identified and that parliament and the people will be seized with the task of making corrections to it.
These natural challenges notwithstanding, I believe there is much in its favour that must persuade the people to vote for the adoption of the Copac draft at the referendum. I will deal with the content later but the bigger picture refers to the place of the constitution in the development of democracy in this country.
Zimbabweans have waged a peaceful and non-violent struggle to change the manner in which their country is governed. For the first time in 2008, they inflicted an electoral defeat that could not be ignored – locally, regionally or internationally.
However, they were denied the opportunity to claim and exercise their electoral victory – the result being the compromise in the form of the inclusive government.
Through the Global Political Agreement (GPA), under which the inclusive government was established, the people managed to once again place constitutional reform on the political agenda.
Clearly disappointed by the “No” vote in the 2000 referendum, Zanu PF had thrown a tantrum and abandoned constitutional reform as a non-issue. The MDC consistently fought for a new constitution and the fact that the process has taken place and that the draft constitution has been achieved is down to MDC’s patience, persistence and resilience of the people.
I will highlight the key features that I find persuasive:
Checks & balances
Since at its core a constitution deals with the relationship between the state and the individual and society at large, it must ensure that those who are vested with the power to govern are limited and that those who are governed have their fundamental freedoms protected from intrusion. The Copac draft does a far better job than the current constitution in both respects.
The Copac draft specifies in clear terms that both executive and legislative powers are derived from the people of Zimbabwe. The executive and parliament only exercise these powers at the pleasure of the people who being the primary source of power, are the ultimate principals.
In order to limit the abuse of state power, it is distributed among the three arms of the state, namely the executive, parliament and the judiciary. The principle of checks and balances, under which the powers of one arm of the state are checked and balanced by one or more of the other arms, is a critical part of the draft constitution.
Principle of term limits
The constitutional limitations on power are also evident in the principle of term limits that will become a prominent feature of the constitution. Hitherto, the principle of term limits has been conspicuous by its absence in the constitution and Zimbabwe’s political culture.
Principle of non-partisanship
The Copac draft also represents a departure from militarism towards constitutionalism – a significant movement from politicisation of state institutions that should otherwise be neutral, apolitical and non-partisan. Key sectors in this regard include the security services and the civil service.
The Copac draft makes it very clear that the defence, police, intelligence, correctional services and the civil service must be politically non-partisan and must serve the national interest without the constraints of politics.
Broader bill of rights
The Bill of Rights is probably one of the most persuasive aspects of the Copac draft, although some clauses could have been improved. These challenges notwithstanding, the Bill of Rights is conspicuous by its wide-ranging character – for the first time covering not only civil and political rights but also providing in good detail for socio-economic rights such as the right to education, health, food and water, environment, etc.
The current constitution has always been criticised for its failure to account for these socio-economic rights and the Copac draft corrects this anomaly.
Civil and political rights, such as the freedom of expression, freedom of assembly, right to personal liberty, etc have been expanded and written in more specific terms with very minimal claw-backs. The rights of arrested and accused persons are extensively articulated in precise terms, while new additions are the right of access to information, and for the first time the freedom of the media is provided for in the new constitution.
Probably the most significant feature of the Copac draft is its sensitivity to issues of gender equality and equity. Not only is the state obliged to fulfil the objective of gender equality, the Bill of Rights and the election rules go a long way to advance the cause of women who have long been saddled with constraints arising from custom and tradition that privileges patriarchy.
The Bill of Rights specifies the rights of women, including the rights to equal treatment, equal pay, receive at least three months paid maternity leave, equal citizenship rights, protection against domestic violence, equal opportunities, custody and guardianship of children, and all laws, customs and cultural practices that violate women’s rights are unconstitutional.
In the political field, 60 seats in the parliament are reserved exclusively for women and where seats are allocated on the basis of proportional representation, such as in the senate, a method of selection that favours women candidates is provided for.
The Copac draft protects from erosion the rights of persons who are citizens by birth. Parliament has no power to prohibit dual citizenship in respect of citizens by birth.
It is important to note that the Copac draft has an expanded definition of citizenship by birth to include persons who are born outside Zimbabwe where one of the parents is a Zimbabwean citizen. This means that persons who may have been regarded as citizens by descent under the current constitution may actually qualify as citizens by birth if they satisfy the conditions.
Further, it must be emphasised that even in respect of citizens by descent or by registration, the Copac draft does not specifically prohibit dual citizenship. Finally, the Copac draft guarantees restoration of citizenship by birth to persons born in Zimbabwe who may have previously lost their citizenship on the basis of laws that affected the so-called aliens.
Devolution of power
By far the greatest transformation to the structure of governance is contained in the provisions for devolution of power. This is a radical departure from the highly-centralised governance structure under the current constitution. It ensures that people will be able to govern themselves more effectively at the local level.
The provisions respond to widespread calls for the distribution of power across the state to enable local governance and prevent marginalisation.
Dr Magaisa is the secretary for legal affairs in the Office of the Prime Minister and was the MDC-T technical expert during the constitution-making process.