New Constitution Calls for Inclusive Approach

THE work of the 25-member select committee on the controversial Kariba draft constitution that was launched by Parliament last Sunday risks failure principally if not only because the process is neither people-centred nor people-driven.

Indeed, the Kariba constitution-making process now underway is worse than all previous constitution-making processes, including those undertaken by the Constitutional Commission in 1999 and the NCA in 2001, such that it cannot be rationally explained or defended in the name of the people even by its most reckless proponents.

There’s no prize for guessing why this is so. While many Zimbabweans would readily agree that it is great to have the tasty bream and tiger fish along with the utility of electricity from wonderful Kariba, most would certainly not accept, as the fundamental law of the land, a boat-driven constitution drafted by three lawyers from Zanu PF and the two MDC formations supervised by a big brother from south of the Limpopo.  
It is therefore politicide that the penniless coalition government, through Constitutional and Parliamentary Affairs minister Eric Matinenga, is pressing ahead with the Kariba draft under a manifestly flawed constitution-making process. 

To understand this, there is a need to first appreciate what is manifestly wrong with the Kariba process.

This is important because there are some weak minds in the government who are beginning to believe their lie that the opposition to the Kariba process is reflexively coming from the usual malcontents whose business is just to oppose the government.

Apart from the fact that the coalition government has no money to fund the Kariba process and is embarrassing the nation by begging from donors who are reluctant to even provide food and medical assistance, the one thing that is particularly wrong with this process is that for the first time since Independence, we have a constitution-making agenda that starts with, and is based on, a secret draft.

Indeed, the September 15, 2008 Interparty Political Agreement between Zanu PF and the two MDC formations specifically refers to the Kariba draft, which has never been made public, as the starting point of the new constitution-making process.

This is why it is most fitting to describe the work of the parliamentary select committee as the Kariba process.

Matinenga has been at pains to argue that the Kariba draft of the three political parties in the coalition government and who dominate parliament is “only a reference point” and that therefore starting with the Kariba draft does not take away that people will remain free to support the draft or to oppose it.

Unfortunately Matinenga and those who take his view miss the point that supporting or opposing a done constitution-making deal is not freedom at all.

Freedom in matters as fundamental as the first law of the land does not come from the government but is God-given and is thus natural to every human being.

The freedom that Zimbabweans need and deserve when it comes to the making of their constitution, which is the fundamental law of their land, is to make that constitution from point zero on the basis of their open-ended but shared history, geography, culture, values, hopes and aspirations and not on the basis of a draft produced by three self-indulgent political parties with vested temporary interests that are by definition narrow and possibly misplaced if not altogether wrong.

The Kariba process launched by parliament last Sunday is neither people-centred nor people-driven, and is therefore manifestly flawed and objectionable because it is based on a preconceived draft that it wishes to use as a reference point for the public to support or oppose or even amend.

That is totally unacceptable.  In 1999 the government could have very well given the Constitutional Commission a draft to use as a reference point but that would have been absurd because the only reference point needed in any democratic constitution-making process is the people, not a draft from any self-appointed section of the society.

What this means is that the Kariba process is without doubt worse than the 1999 process of the Constitutional Commission which was good enough to start with an open-ended process that led to the production of a draft only after and not before the fact.

The draft of the Constitutional Commission was rejected in the referendum on grounds that it did not fully encompass the views that the people gave to the Commission.

There was no argument that the Commission failed to fully gather the views of the people. Against this background, it is difficult to understand why the coalition government has chosen a flawed process that is worse than our previous national experience through the Constitutional Commission.

The only way to purge this is for the coalition government to categorically throw out the Kariba draft as of no use or relevance whatsoever.

The process must start from scratch and not from a boat in Kariba. In any event, nothing would be lost because the Kariba draft remains a secret document that has been seen only by a select few in the three ruling parties. 

Minister Matinenga should perish the thought that he can get away with a secret document smuggled in as a reference point for a democratic constitution-making process.

Then there is the all-important question of whether or not parliament, through a select committee, is the appropriate forum for making a new democratic constitution.

The honest answer is no and there are numerous examples from the civilised democratic world to support it.

Again, our history has lessons on this. In 1999 the national consensus was that parliament, which then was dominated by Zanu PF with 147 members, was not the appropriate forum to spearhead the making of a new democratic constitution.

The government then argued in vain to have a process led by a select committee of parliament.
The Constitutional Commission was set up as an improvement on an inherently flawed parliamentary process.

The only way to remedy the inappropriateness of a parliamentary process is to create an elected Constituent Assembly or to have a body similar to but better than the 1999 Constitutional Commission whose composition, method of work and draft were far better than the 25-member, chairmanless, select committee that has been set up to push through an inferior and still secret Kariba draft constitution that is dead in the water.

*Jonathan Moyo is MP for Tsholotsho North.

BY JONATHAN MOYO

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