LEGAL experts from East and Southern Africa concerned about the continued abuse of power by governments have adopted a set of guidelines to set regiona
l standards on how to adhere to democratic principles and constitution-making in the Sadc region.
The experts adopted the guidelines last Saturday in Harare after a three-day symposium on the Rule of Law, Human Rights, Constitutionalism and the Constitution Making Process in the Sadc region.
The guidelines form the basis of a proposed draft constitution for the region which is being coordinated by National Constitutional Assembly chairperson Lovemore Madhuku and will be presented to Sadc leaders for consideration and possible adoption.
This comes at a time when Sadc member states are undergoing constitutional reforms, notably in Zimbabwe where the process has stirred controversy after being left to the ruling Zanu PF and the opposition MDC under the Sadc-brokered mediation initiative by South African president Thabo Mbeki.
The two parties adopted the Zimbabwe Constitution Amendment No 18 Bill, which was last week signed into law by President Robert Mugabe.
The civic society and members of the public are bitter that the constitution making process has been left to politicians who can abuse their authority to promote their own selfish interests.
Delegates to the symposium resolved to advocate the adoption of a regional constitutional framework similar to the guidelines on elections, drawn from the Universal Declaration of Human Rights to provide checks and balances on law-making processes in member states.
This was also reiterated by High Court judge and former acting Attorney-General Bharat Patel in his presentation at the symposium.
The effects of a flawed constitution were confirmed in this week’s Supreme Court ruling on a constitutional application by a group of ex-commercial farmers challenging the seizure of their equipment.
The Supreme Court dismissed the farmers’ submission that the Acquisition of Farm Equipment Act fails to provide for payment of fair compensation within a reasonable time as required by the constitution of Zimbabwe.
Chief Justice Godfrey Chidyausiku said the constitution provided that compensation had to be paid within a reasonable time.
“The payment, in view, has to be made within a reasonable time. Whether payment will be in one lump sum or in installments is something the constitution chose not to prescribe,” said Chidyausiku.
He noted that the outside time limits set out in the Act were indications of what the legislature considered as the outer limits of reasonable time for payment.
“They do not circumscribe the discretion of the court which will decide the reasonableness of time for payment on the basis of the facts of each case,” said Chidyausiku.
Commenting on the ruling, NCA chairperson Madhuku said this was one example of how a defective constitution undermined the rights of citizens without due regard to the property rights of the minority.
Madhuku said despite the constitution not making specific provisions on the timeframe for compensation, the court should have ordered that compensation be immediate given the prevailing hyperinflationary environment.
“The current constitution is so defective on private property rights as it was premised on colonial history.
“In as much as there are laws on compulsory acquisition of land, the compensation for equipment should be made within a reasonable time and in my view that should be immediate under the current economic climate,” Madhuku said.
“Such loopholes in our law can only be addressed through the adoption of an all-inclusive and people-driven constitution, hence our efforts to push for a regional constitutional framework through the symposium we had last week,” said Madhuku.
The symposium was jointly organised by the Open Society Initiative of Southern Africa and Zimbabwe Lawyers for Human Rights.
It was attended by South African Constitutional Court judge Justice Albie Sacks and Ugandan Supreme Court judge Justice George Kanyeihamba, High Court judge Patel and members of Sadc law societies.