Candid Comment: Constitutional Process is Flawed

AN interesting metaphor of mountain climbers is often given in relation to the constitution-making process.


The metaphor is that if you want to scale a mountain as a group and ensure that everyone reaches the peak as part of the collective, you must set down the general rules of how you are going to do it.

At the bottom of the mountain, the climbing team can set rules on how to make the climb. Initially, everyone must agree with the rules of climbing, and as such they take the shape of being impartial.

When the climbing starts, and the gradient increases, the team must cooperate more. The rules they come up with are defined by that particular mountain, and thus cannot necessarily be applied to other tasks.

The team must nevertheless agree all the way if they are to reach the peak. If only one of them fails to comply, due to a reasonable rejection of the actions taken by the rest of the team, they must climb back to where they all agreed last time.

The essential element is that, for everyone to reach the peak, they must agree on how to get there. This can also be applied to the process of constitution-making. There must be an inclusive team — usually a Constitutional Assembly as was the case in South Africa in 1995-6 which was agreeable to the generality of the population. It must have a clear consensus-based mandate and rules.

All-inclusiveness stems from the principle of equality. Everyone affected, and even potentially affected, by the consequence of the constitution-making process must be included via representative groups be they political parties, civil organisations or any other group with organised interests.  

The constitution-making team must have structures and rules of operation on how to achieve the desired outcome. The assembly or commission must preferably be chaired by a judge or another person of proven integrity. Judges are preferred by many because they are used to listening to different arguments of cases and therefore have an aptitude for impartiality and complex points.

Nine years after the rejection of a government-appointed constitutional commission draft at a referendum that marked a watershed in local politics, Zimbabwe is once again trying to draw up a new constitution as part of a broad national political agenda to usher in a democratic dispensation to break from the devastating authoritarian era whose legacy is a ruined economy and public anguish.

Unlike the last time (1999-2000) when a rather inclusive commission was put in place to steer the process, this time round a select parliamentary committee made up of MPs from three political parties is driving the process.

The committee is not only narrow in terms of representation, but is also relatively small, demonstrating a self-serving attempt by the parties to keep the process under control and as an exclusive domain for the political elite and their partisan followers.

The committee by dint of its thin representation merely reflects political prejudices of the moment and short-term interests of the few parties involved. Although MPs represent the people, their interests are basically short-term because they are elected for only five years. Parties in parliament or their MPs do not represent and cannot possibly capture in their agendas variegated and competing interests in a broad and diverse society.

Whereas the objection during the 1999-2000 process was that the commission did not holistically and adequately interpret the people’s views in its draft, the current debate is mainly centred on the process with particular attention to the select parliamentary committee.

There are serious objections to having a select committee — dominated by three political parties none of which has an overwhelming public endorsement as shown by the currently hung National Assembly — spearheading and shaping a constitution-making process whose outcome will be a fundamental law of the land which will govern society for generations to come.

Those defending the process say the select committee is representative enough because it comprises MPs who are popularly elected representatives of the people.

There are many reasons why this process is badly-flawed and should be rejected. The notion that a committee with 25 MPs can legitimately and democratically-spearhead the constitution-making is as bad as the attempt to impose the Kariba draft through the political backdoor.

The Kariba draft cannot be used as it is a product of three parties with narrow interests and besides it remains a secret document outside the public domain.

We want to see an inclusive and transparent process. The current one is dodgy and opportunistic. It is hostage to the interests of politicians and their media hacks.

The other thing is that the committee is not representative enough and only captures the political interests of the three parties and their partisan supporters. Political parties and their MPs in parliament reflect short-term interests and prejudices of the time and a constitution-making process cannot be captive to the dictates of temporary power contestations and pursuits.

The reason why the three parties could not even agree on the chairman of their committee is because they are pursuing and defending narrow and short-term power interests.

Their agenda is to out-manoeuvre each other during this process to gain power. Thus this process, as it stands, must necessarily be exposed as inadequate for democratic change.

BY DUMISANI MULEYA