A new constitution should come first

THIS week Zimbabwe Lawyers for Human Rights (ZLHR) came out strongly against government’s intention to amend the constitution for the 18th time to set up a Zimbabwe Human Rights Commission.

On the other hand, the usual cro

wd of cheer leaders who applaud every government move were wheeled onto national television to give the proposed amendment a thumbs up and to praise government for its vision.

But their blindness to the realities on the ground and the rules of constitutional governance is the dangerous instrument which our government has always used to justify mutilating the constitution for political expediency.

Lawyers have pointed out that the amendment to establish the Zimbabwe Human Rights Commission will create “a mutilated bill of rights and a proverbial constitution which does not espouse the principles of constitutionalism”.
They are right.

History has shown that in constitutions written on the spur of the moment, at a specific point in time, usually when society faces very difficult economic, social and other problems, there is a temptation and often a necessity to deal with these problems swiftly.

But provisions designed to quickly deal with immediate problems may not be appropriate solutions for the long-term.
In such instances human rights are not adequately protected, and it will be difficult to do so later.

Our government has been introducing piecemeal constitutional changes to deal with land, to set up an upper house and now to set up a Human Rights Commission.

In the first two instances, the omnibus amendment carried with it provisions which infringed the bill of rights by attacking property rights and abridging the authority of the judiciary to hear cases relating to land.

It will not be surprising if the proposed amendment also brings in egregious provisions to limit our democratic rights.

As rightly pointed out by ZLHR, government should refrain from manipulating and implementing piecemeal amendments to the constitution, thereby negating the need for broad-based and inclusive consultation with all stakeholders.

This handicap in constitutionalism is deliberate. The government’s constitutional draft was rejected in the 2000 referendum.

It is fully aware that in an all-inclusive process, the people will reject self-serving laws. The plan is therefore to introduce piecemeal measures on the hoof.

This brings us to the dichotomy arising from Zimbabwe’s tinkering with supreme law-making and enactment of legislation.
A constitutional amendment should be necessary to deal with a particularly important issue. In this case the government has told us that it intends to protect the citizens of Zimbabwe by setting up a body that will deal with
human rights abuses by state and non-state actors.

We agree with human rights lawyers that to “establish a human rights commission in the prevailing legislative and administrative operating environment without corresponding and simultaneous changes to the current repressive laws is tantamount to deception and attempts to create illusory  remedial institutions”.

A commission crafted in an environment of state-perpetrated authoritarianism aided by repressive laws is a mockery to the populace seeking protection from the constitution.
Laws deemed to infringe the constitution must first be removed from our statutes if the government’s proposed commission is to be taken seriously.

On that raft of legislation is the Access to Information and Protection of Privacy Act and  the Broadcasting Services Act which have been used as a pretext to close independent media houses, harass and arrest journalists and to close independent radio stations.

Laws which restrict the enjoyment of fundamental rights such as assembly, association, protection of the law, freedom of expression and movement such as the Public Order and Security Act, the Miscellaneous Offences Act and Constitutional Amendment Act No 17 should be repealed.

What Zimbabwe is crying out for are not more sweet-sounding monoliths fashioned to bribe the nation’s conscience that freedoms and protection of rights will come from statutes.

We live in a closed society where repression and brutality by security forces is condoned by the state on the pretext of maintaining law and order while the courts are unable to uphold the liberties to which we are entitled.

There is urgent need for a democratic constitution as the foundation for a democratic government and only after such a process can our constitution contain provisions for the establishment of a genuine and effective human rights commission.

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