Popular demands for a new constitution in Zimbabwe largely arose from a crisis of state governance and legitimacy, as well as pressure to democratise the country.
Opinion by Pedzisai Ruhanya
When the National Constitutional Assembly (NCA) was formed in 1997 to demand a new constitution, they were primarily concerned with the overbearing structure of the executive and excessive presidential powers.
Presidential powers, they believed, had been terribly abused and a new constitution was needed to curtail them and allow democratisation to take root.
The first draft constitution in February 2000 was rejected in a national referendum because it left the president’s powers fundamentally unaltered.
This latest process of constitutional reform was being driven by Article XI of the Global Political Agreement signed in 2008 which formed the basis of the coalition government of Zanu PF and the two MDC parties.
The MDC groups hoped that the new constitution would form part of a raft of essential political reforms that would pave the way for the holding of free and fair elections.
At the Zimbabwe Democracy Institute (ZDI) we believe that the drafting process for this new constitution has been fundamentally flawed, producing a weak and ineffective constitutional draft.
Essentially, we also think the hype over this draft has diverted attention from the other, crucial reforms necessary for free and fair elections to take place.
Our critic of the draft is without prejudice. It is appreciated that constitutions are born out of struggles, but these struggles should not be limited to power struggles but broader principled democratic struggles. Despite its rallying calls for liberty, fraternity and equality, the 1789 French revolution teaches us that not all struggles against tyranny lead to democracy.
Any useful analysis of the new draft constitution should appreciate that it is a product of political negotiations, horse-trading and compromises between the three main political parties in government, not a creation of a genuinely people-driven process.
Consequently, the new draft constitution does not reflect the views and aspirations of the people of Zimbabwe, and must be viewed as a transitional constitution that citizens should revisit in the future and review when the political environment is conducive.
Whereas the draft was crafted by the major political parties in the inclusive government, minority parties and interests groups were sidelined. Such a critical national pursuit should have been inclusive and non-partisan.
While Zanu PF and the MDC parties are the major political players, most Zimbabweans do not belong to these political parties. In fact, they represent a narrow section of society.
Zimbabweans in civil society, business, minority groups and small political parties should have been equally represented in the constitution-making process. Since it was a flawed process, the product would inevitably be flawed.
The new draft constitution is not a significant improvement on the current constitution: it retains excessive executive powers of the president; fails to embrace the principle of substantive devolution; fails to abolish the death penalty; and retains discrimination on the basis of sexual orientation, among other things civilised societies have done away with.
What is more, Zimbabweans in the diaspora have no right to vote and the contentious issue of dual citizenship is not adequately addressed by the constitution, leaving it to the winning party in the next elections to legally address citizenship rights.
To its credit, the new draft constitution grants significantly more rights to women and has more provisions aimed at supporting gender equality.
For instance, it provides that 60 legislative seats shall be reserved for women and that in all constitutional commissions or committees, representation shall be 50% women, and 50% men.
Furthermore, for the first time, social and cultural rights such as the rights to health, water and education are protected by the founding law.
The difficulty will be how to realise those rights, given that the state is economically incapable of fulfilling them and government is bankrupt.
Unlike the current constitution, the new draft constitution also sets term limits for the president at two terms of five years. However, this does not apply to the serving president. So President Robert Mugabe would still be entitled to two further presidential terms under the new constitution. He can rule until he is 99 years old if nature and his health allow.
This falls short of what most Zimbabweans wanted. They expected Mugabe — who has been in power for 33 years — to be barred from contesting the next elections on the basis that he presided over the state’s political and economic decay, not to mention his involvement in colossal human rights violations during his three-decade rule.
Prior to its presentation to the legislature, all political parties decided to vote in favour of the flawed draft constitution.
Consequently, it received unanimous endorsement from the two houses of parliament, the House of Assembly and Senate: a passage reminiscent of de facto one-party state days under Zanu PF.
The two houses rubber-stamped the draft without debate at all, showing the parties involved have no regard for democratic tenets.
Given the elite consensus between Zanu PF and the MDCs underpinning the constitution-making process and to support a “Yes” campaign, their supporters will vote for the new draft constitution in the referendum on March 16 without debate.
Some civic groups, including the NCA, are campaigning for a “No” vote to the draft constitution, but ZDI expects that the draft will be approved at referendum because the majority of civil society organisations have been co-opted into the state after their main political ally, the MDC-T, joined government in 2009, which is a setback for democracy.
Moreover, these civic groups are under economic pressure to support the constitution despite its imperfections: the drafting process was bankrolled by their major funders to the tune of more than US$50 million.
This has complicated and compromised their position, and explains why there is a lack of independent thought leadership, but sycophancy from this sector on the draft constitution.
But ultimately, how much difference would the draft constitution make even if we were to hypothetically say it is good? The draft constitution is ultimately unlikely to improve the political situation because the fundamental problem in Zimbabwe is not the lack of a good constitution, but mainly a refusal to embrace constitutionalism and attendant failure to abide by the rule of law.
In many instances, the Zanu PF regime simply ignored constitutional provisions or, where the judiciary ruled government conduct to be unconstitutional, simply amended the constitution to suit its needs, thus undermining the rule of law.
In some cases, court rulings and orders have been brazenly ignored, while unlawful activities have been normalised.
This challenge still remains. So too does the problem of partisan and politicised government institutions which violate the constitutional principle of the separation of powers, for instance, in the security sector.
Unless there is robust pressure from Sadc and the African Union as well as the wider international community, Zimbabwe’s next elections under this new constitution will be marked by the same authoritarian and fraudulent tactics of Mugabe and his political cabal to retain power at all costs.
After their 2008 experience, Mugabe and his party would not want to leave anything to chance: it is the margin of terror that is likely to make the difference again.
Ruhanya is Zimbabwe Democracy Institute director and a PhD candidate on media studies.